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Is your business ready for the employment issues arising from COVID-19?

Posted by March 19, 2020 | Articles | No Comments
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By Mark Cox, Director & Nikita Barsby, Special Counsel

As Coronavirus (COVID-19) continues to affect and even shut down workplaces across Australia, and amid warnings the situation will worsen in coming weeks and months, perhaps even to a widespread lock down, businesses around the country are developing contingency plans.

This article is to assist your business to evaluate whether it is doing enough to meet its workplace obligations to employees.

State and Territory work health and safety laws oblige employers to ensure safe workplaces for their workers (including employees, contractors and labour hire workers).  Employers should consider practical steps that can be taken now to address the risk associated with Coronavirus in their workplace.

Protective measures include:

  1. Provide access to up to date information relevant to employees regarding Coronavirus, such as:
  1. Implement policies consistent with Australian Government and or Department of Heath recommendations/directions regarding the management of employees identified as being at risk of infection from Coronavirus; employees diagnosed with Coronavirus or with family members or others with whom they’ve had contact with that diagnosis, and employees who may be travelling overseas;
  2. Stop all non-essential work-related travel;
  3. Tell sick employees to stay at home;
  4. Ensure clean workplaces; in particular ensuring all door handles, computer and phone keyboards, desks and other surfaces and contact points are regularly cleaned with a disinfectant;
  5. Require staff to maintain a distance of at least 2 metres from each other and with people with whom they deal in the course of their employment including clients, customers, suppliers etc;
  6. Encourage phone conferencing or other non-face to face meetings and communications;
  7. Discourage meetings in person and prohibit large gatherings at or associated with work;
  8. Provide employees/workplaces with additional hygiene items such as hand sanitiser, air purifiers etc; and
  9. Develop remote work arrangements in the event the workplace is required to shut down; and
  10. Provide Employee Assistance Programmes where possible.

Employees may be experiencing stress/anxiety during this time. Remind employees about any applicable Employee Assistance Programme and/or consider practical measures that can be taken to improve workplace wellbeing and keep up morale (e.g. daily group “check ins” via Skype or teleconference where employees are working remotely from home).

If an employee is diagnosed with Coronavirus, the employee should be treated just as they would if unwell with any other illness.  Employees entitled to personal leave under the Fair Work Act 2009 (Cth) will be required to take paid personal leave.  If the employee has no accrued paid personal leave, the employer may agree they can utilise other forms of accrued paid leave such as annual leave or long service leave – or they may be required to take unpaid leave.

If the employee contracted the illness as a result of exposure in the course of employment duties, they will be entitled to seek worker’s compensation.

Employers who have concerns about an employee’s fitness to work and/or to return to work can request the employee to provide evidence of their fitness for work or, alternatively, the employer can direct the employee to undergo an independent medical assessment (at the employer’s expense).

Dishonesty regarding travel plans/arrangements and or fitness for work may be grounds for disciplinary action.

Can you shut down and stand employees down?

If the employee is not sick, and there is no government or other competent authority directing a shut-down, and there is no other cause beyond the employer’s control that causes a stoppage of work (see section 524 of the Fair Work Act 2009 (Cth)), employers have to stand employees down with pay. Employers can ask employees to take annual or long service leave, but cannot compel or pressure them to do so.

If a workplace shut down is implemented as a result of Coronavirus outbreak and or a direction from a competent authority, employers will need to comply. Ahead of that, employers should consider whether employees can work remotely. That does raise the question of how the employer will ensure ongoing compliance with its obligations to provide a safe workplace when the employee’s workplace is their home. When directing employees to work from home, there needs to be understanding and accommodation for those employees who are likely to have childcare responsibilities at the same time.

If remote work is not possible, employers will need to consider what options are available to employees to take leave – do employees have sufficient accrued annual, long service or other special leave to cover the shut down period? Many modern awards enable employers to require employees to take annual leave as part of a shutdown of operations.

Employees who do not have sufficient accrued leave entitlements will likely be required to take unpaid leave for the duration of the shutdown. Section 524 of the Fair Work Act 2009 (Cth) permits an employer to stand down an employee without pay if there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible.  A coronavirus outbreak in the workplace, or a government mandated shutdown, are likely circumstances captured by section 524.  Employers cannot stand down employees under section 524 if an enterprise agreement or contract applies to the employee which provides for stand down – in which case compliance with obligations under those instruments is required.

Circumstances where employees may be required to work remotely and or take leave in the coming weeks and months are varied. The type of leave an employee may be entitled to in the event of a Coronavirus related absence and, whether that leave will be paid, very much depends on the particular circumstances in which the leave is taken and any applicable obligations under any modern award, enterprise agreement, employment contract and/or workplace policy. Employers should consider obtaining specialist advice.

Employers will need to balance considerations of their legal obligations to employees, ongoing advice from health and government authorities and hardship that employees may suffer from imposed workplace shutdowns – including exhausting leave entitlements or being required to take unpaid leave.  Employers who are able to do so could consider relief measures such as granting special paid leave during workplace shutdowns or allowing employees to utilise leave entitlements in advance. Where available, employees should be informed they can access Employee Assistance Programs as needed.

The situation unfolding is obviously novel and prudent employers will begin contingency planning immediately, and will keep abreast of ongoing updates from authorities. When in doubt, seek advice.

MDC Legal is a specialist employment law firm with extensive experience advising employers on their legal obligations and human resources strategy and planning.  We understand that the current situation is changing rapidly and causing some uncertainty and angst.  Our lawyers are available to assist on an urgent basis and we are offering a specialist COVID-19 Employer Advice Service to provide timely, clear and practical advice on navigating employment relations issues amidst a Coronavirus outbreak. Find out more about this service here.