How to deal with the coronavirus at your workplace

In January 2020, the coronavirus (COVID-19) was declared a global health emergency by the World Health Organisation. The impacts of the emergency on health, commerce and trade are significant and widespread.

The impacts of the spread of Covid-19 will also affect workplaces. From a workplace perspective, there are at least 2 significant areas of impact, that employers and businesses must consider. The first is work, health and safety (WHS). The second is dealing with employees who must take leave and what to pay by way of leave entitlements.

WHS considerations

Under the various State based work health and safety legislations employers (as the person conducting a business) bear an onerous duty to:

  1. ensure the work health and safety of their workers; and
  2. ensure the workplace is safe and without risks to the health and safety of workers and of other persons who may be affected by the work or workplace operations

so far as is reasonably practicable for the employer to do so.

Each workplace is different and will present its own risks for safety and health in terms of the possible transmission of coronavirus. For example, the steps that might be needed to ensure health and safety so far as is reasonably practicable in an administration office will differ from those that may be necessary in a child-care business, an aged care business or a hospitality business.

So every employer and every business needs to take time to consider where the risks of transmission of the virus affect their business and based on that assessment, to implement measures to minimise the risks.

In some businesses, there may be a greater emphasis on the need for employees to remain away from the workplace if there is any risk of having been exposed to Covid-19. This may be necessary in medical, aged care, childcare or hospitality industries. Other businesses may need less emphasis on employees self-isolating.

To discharge their legal obligations, employers should:

  1. keep up-to-date with information on infection and quarantine requirements from the Commonwealth Department of Health’s website;
  2. undertake a work health and safety risk management review and identify any work health and safety response necessary to minimise the risk of infections;
  3. consult with employees about what safety measures might be needed to eliminate or minimise the risk of infections and keep employees up-to-date with any new measures that are deemed appropriate.

Further, some of the practical steps that have been identified by health authorities include –

  • maintaining clean and hygienic workspaces by regularly wiping surfaces, phones and keyboards with disinfectant.
  • providing employees with hand sanitizer, disposable tissues, and in some cases, face masks and closed bins.
  • ensuring hand-washing facilities are easily accessible to everyone in the workplace.
  • displaying signs or posters promoting regular hand-washing with soap and good respiratory hygiene; i.e. keeping one’s mouth covered when coughing and sneezing.
  • stopping or limiting any international travel for work-related purposes. If international travel cannot be avoided, ensure that all employees are briefed by a qualified medical professional and consult national travel advice before going overseas.
  • consider a self-isolation or quarantine period if workers who have travelled to a ‘high risk’ overseas destinations before they are permitted to return to work.
  • require employees taking annual leave to inform of any travel destinations before returning to work and, if necessary, obtain a medical clearance and self-isolate for a specified period.
  • direct any employee who takes time off on sick leave to obtain a medical certificate clearing them to return to work.
  • directing any employee who experiences or displays flu-like symptoms, or who has been in contact with anyone who has the virus, to stay away from work for a specified period and to obtain medical clearance before returning to work.
  • developing a plan of what to do if there is an outbreak of the virus in your workplace.

Employers should communicate their safety plans or policy to staff and of course, any measures should be reviewed over time as further developments occur. Since the work health and safety legislation imposes an obligation to consult with workers about health and safety risks that may affect them, employers should take the opportunity to consult with staff about where potential transmission risks lie and to take into account the sorts of safety measures.

What about employee requiring leave and what entitlement is there to be paid?

There are a few scenarios that employers must consider

1.         If an employee is sick or has to care for a family member or a member of their household who is ill or injured.

The employee will be entitled to use their accrued paid sick/personal leave entitlements for any absence from work.  Casual employees are entitled to 2 days of unpaid carers leave.

2.         If a government health authority directs an employee to self-isolate or be quarantined but the employee is not sick.

In this scenario, the first step will be to determine if the employee can work from home.  An employer should consider what measures it can take to assist an employee to be able to work from home.

If the employee cannot work from home, then the employer and the employee will need to come to an arrangement about the leave which might include:

(a)        the employer offering a period of  paid special leave; or

(b)        allowing the employee to use annual leave or long service leave.

In this circumstance, when the employer has not required the employee not to attend work, there isn’t a statutory obligation on the employer to pay the employee during the self-isolation period.  The lawful requirement for the person to self-isolate renders them incapable of being able to do their job.  Of course, a cooperative approach in circumstances like this is recommended.

3.         An employee wants to stay home as a precaution from contracting the virus from others.

If it is not possible for the employee to work from home in this circumstance, then the employee will need to apply for annual leave or to use any accrued long service leave.

4.         An employer directs an employee to stay-at-home

Asking an employee to stay-at-home is effectively standing the employee down.  The Fair Work Act provides for the circumstances in which an employee can be stood down without pay and limits that to all circumstances in which the employee cannot do useful work because of equipment breakdown, industrial action or a stoppage of work for which the employer is not responsible.

In circumstances where the employer stands the employee down for work health and safety reasons, or where there is an immediate risk to health and safety, employers are required to pay the employee during the stand down period.

Of course, an employer should check any enterprise agreement or employment contracts to determine if  there are other grounds for which it is possible to stand an employee down without pay. For example, an enterprise agreement may provide that the employer can stand employees down without pay if the employee is unable to undertake their work without being a work health and safety risk.

Employers can require an employee to take a period of paid annual leave for the self-isolation period if that request is reasonable (e.g. the employee has excessive annual leave accrued) and if any requirements in an applicable modern award or enterprise agreement are satisfied. Likewise, an employer can direct employees to take a period of accrued long service leave subject to the legal requirements in each State.

Seek advice

The Covid-19 creates a unique situation and the appropriate course of action will vary from circumstance to circumstance.

The decisions you make may also be affected by the need to maintain productive and cooperative relationships with employees and this may, in some circumstances, result in employers agreeing to a period of special paid leave.

Otherwise, employers need to be prepared to take legal advice in these unique circumstances in order to minimise any risks of disputation, employee dissatisfaction or breaches of the employer’s statutory obligations or Award obligations in managing this unique situation.

Disclaimer

This article is general commentary on a topical issue and does not constitute legal advice. If you are concerned about any topics covered in this article, we recommend that you seek legal advice.

For further information please contact the authors Martin Alden, Partner or Robert King, Partner.

The Authors

Martin Alden

PARTNER, MELBOURNE

Robert King

PARTNER, BRISBANE

Jessica Cirnigliaro

LAWYER, MELBOURNE