Knowing how to manage employees and their welfare during this Coronavirus crisis is something every employer is now having to deal with. It’s an unprecedented event and it can seem to bring up more questions than answers when it comes to employment law and managing staff.
PeopleStart have put together some answers to the most Frequently asked questions.
We also encourage you to sign up to our HR Coronavirus MAILING LIST so we can provide you with any updates in regards to employer obligations. We will also be offering free templates such as working from home policies and safety checklists.
Coronavirus – Employer obligations – Frequently Asked Questions
An employee may take carer’s leave to provide care or support to an immediate family or household member, where the care or support is required because of an unexpected emergency.
At this time, the closure of a school in the current climate will amount to an unexpected emergency. Where an employee qualifies for carer’s leave, they may access their accrued paid personal/carer’s leave.
An ‘immediate family member’ is:
- a spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, sibling;
- a child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner.
A ‘household member’ is any person who lives with the employee.
The employee should be paid as if they were taking personal (sick) leave, the minimum requirement being payment at base rate of pay for the employee's ordinary hours of work in the period.
Employers may ask for reasonable evidence to justify the absence on carer’s leave. For example, a school announcement about a shutdown.
You should also consider working from home options for your employees wherever possible to ensure your operations can continue, and the employees continuity of pay if they do not have carer’s leave available to them.
In short, Employers have a responsibility to ensure a safe workplace for employees.
To comply with OHS (Occupational Health and Safety)/WHS (Work Health and Safety) laws you must identify hazards at the workplace and the associated risks, and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks.
Whether a control measure is reasonably practicable to implement involves consideration of what is able to be done to manage a risk and whether it is reasonable in the circumstances to do so. The likelihood of the risk occurring, the degree of harm that might result and the availability and suitability of a control measure are key considerations in determining what measures are reasonable.
You should consult with your employees about any changes or measures you put in place in relation to protecting them from COVID-19.
It is important that you balance your responsibilities with the rights of your employees, we go into more detail on this in other questions.
Under the OHS/WHS laws, employers must have measures in place to eliminate or manage the risks arising from Coronavirus (COVID-19).
To do this, you should keep up to date with the latest Coronavirus (COVID-19) information and advice to ensure that any action taken is appropriate (sign up to PeopleStart’s mailing list for updates). This includes closely monitoring the information provided by the Australian Government Department of Health, the Smartraveller website and advice from state or territory government agencies, including health departments and WHS regulators. See Information and Resources section below for links to these agencies.
You may not be able to completely eliminate the risk of workers contracting Coronavirus (COVID-19) while carrying out work. However you must do all that is reasonably practicable to minimise the risk of workers of contracting Coronavirus (COVID-19).
What control measures will be reasonably practicable will depend on the work being carried out by workers and particular workplaces.
Generally, you should:
- determine appropriate control measures in consultation with workers and/or their representatives, and keep them updated on any developments
- implement those measures and clearly communicate them to all workers, including providing clear direction and guidance about what is expected of workers
- workers should know when to stay away from the workplace - what action to take if they become unwell, and - what symptoms to be concerned about
- continually monitor relevant information sources and update control measures when and if necessary.
- provide workers with appropriate personal protective equipment and facilities ie hand sanitiser, and information and training on how and why they are required to use them
- require workers to practice good hygiene, including: - frequent hand washing - limiting contact with others, including through shaking hands, and - covering their mouths while coughing or sneezing
- require workers to stay away from the workplace if they are unwell and not fit for work, and encourage them to seek medical advice as appropriate
- seek advice from health authorities immediately if there has been a confirmed case of COVID-19 in your workplace
- limit access to the workplace by other people, unless necessary
- reconsider any work-related travel and implement other methods of communication - for example, rather than requiring employees to undertake air travel to attend face to face meetings, facilitate attendance by tele or videoconference
- remind workers that they have a duty to take reasonable care for their own health and safety and to not adversely affect the health and safety of others.
- provide workers with a point of contact to discuss their concerns, and access to support services, including employee assistance programs
- allow workers to access any available entitlements in line with your obligations, enterprise agreement, employment contract or workplace policy
- Consider offering the flu vaccination (available April) at your workplace. The flu vaccination will not protect people against Coronavirus (Covid-19), however it is currently far more likely that Australians will be exposed to flu and those with a weakened immune system will be more susceptible to other illnesses. You may wish to offer a subsidy or rebate for the flu shot to encourage uptake among your team Download our Employee Notification email which outlines your expectations of employees and how to reduce risk at the bottom of this page.
Employees who want to stay at home as a precaution need to come to an arrangement with their employer that best suits their workplace, such as making a request to work from home (if this is a practical option) or to take some form of paid or unpaid leave, such as annual leave or long service leave. Normal leave application processes in the workplace apply.
If the employee does not enter into an arrangement with their employer or use paid leave, they are not entitled to payment in these circumstances.
You should encourage your employees to discuss their level of risk of contracting coronavirus with their doctor.
Employees who do not work because they have a reasonable concern about an imminent risk to their health or safety are not taking industrial action. This is provided they are not failing to comply with a direction to perform other appropriate and safe work.
In some circumstances a worker has the right stop or refuse to carry out unsafe work. A worker has this right to cease work if there is a reasonable concern that the worker would be exposed to a serious risk to their health and safety from an immediate or imminent hazard.
A worker must inform you as soon as they can that they have ceased work. A worker must also then be available to carry out suitable alternative work, such as working from home.
Health and Safety Representatives (HSRs) can direct a worker in their work group to cease unsafe work. HSRs can do this if:
- they have a reasonable concern that a worker would be exposed to a serious risk to health and safety from an immediate or imminent hazard, and
- they have already consulted and attempted to resolve the issue with the business or undertaking for whom the workers are carrying out work (unless the risk is so serious and immediate or imminent that it is not reasonable to consult first).
- HSRs must inform the workplace of any direction that has been given to cease unsafe work. HSRs can only direct that unsafe work cease if they have completed their initial training under the model WHS laws.
If an employee is at risk of infection from coronavirus (for example, because they’ve recently travelled through mainland China, Iran, the Republic of Korea or Italy, or have been in close contact with someone who has the virus), you should request that they seek medical clearance from a doctor and work from home (if this is a practical option – see below), or not work during the risk period.
Employees can be directed to obtain medical clearance, which may include being tested for coronavirus, provided this is reasonable and based on factual information about health and safety risks. You can find information on quarantine requirements on the Australian Government Department of Health’s website.
Where an employer directs a full-time or part-time employee not to work due to workplace health and safety risks but the employee is ready, willing and able to work, the employee is generally entitled to be paid while the direction applies. However, there is a grey area here in whether or not the employee should be covered if they have knowingly travelled to a risk area. With the current status (14 March) being the government has advised against any international travel, we will have to keep a close eye on this. So at this stage, be prepared to pay – but we will keep you updated, just sign up to our mailing list here
Employers should also consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of equipment break down, industrial action or a stoppage of work for which the employer cannot be held responsible. The most common scenarios are severe and inclement weather or natural disasters.
Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has the coronavirus. Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay. Employers are not required to make payments to employees for the period of a stand down, but may choose to pay their employees. Let’s watch this space.
Again, working from home arrangements should be agreed by both parties. So it’s fine to ask that they do, but they would typically need to agree (as of 14 March). If they are willing and able to work, you need to be prepared to continue paying them at their base rate.
If you want an employee to work from home you should review your policies, contract and the relevant Award first.
You should also consider the nature of the work and whether the employee’s home is suitable, as workplace health and safety laws still apply when they are working from home. So, if they are injured, you will still be liable.
Download a free sample Working from Home Safety Checklist click here
Where employees are required to record their hours of work (for example, in relation to annualised wage arrangements under some modern awards), this needs to continue when they are working from home.
If an employee is willing and able to work you need to be prepared to continue paying them at their base rate. However, this will depend on your contract and policies and whether or not you have a shutdown clause within them, so make sure you check these.
You could also request (but not direct in most cases) for employees to take annual leave.
You should be mindful of the long term effects any decision you make will have on your workplace and the employees.
The likelihood that increasing numbers of employees will be unable to work either because they are sick or must care for others means that companies should review their paid time off and sick leave policies now. Policies that give employees confidence that they will not be penalized and can afford to take sick leave are an important tool in encouraging self-reporting and reducing potential exposure.
While few companies outside of Asia have closed worksites yet because of the epidemic, about half of the Chinese companies in a recent survey shut down worksites at least temporarily. Such closures will likely become more common outside of Asia should the epidemic continue on its current course.
In short, no you don’t have to pay casual employees or contractors if they are not working, as they are not entitled to leave under the FairWork Act.
Note: There are special provisions that deem contract outworkers in the textile, clothing and footwear industry to be employees for the purposes of most protections under the Fair Work Act so treat them as you would an employee.
If you need to make an employees’ positions redundant then you’ll need to understand the legal requirements including notice and pay requirements, as well as best practice on how to notify the employee.
For advice on this please reach out to PeopleStart.
If you need to vary employees’ work rosters, they first you should review your policies, employment contract or enterprise agreement and the relevant award as in most cases you’ll need to seek the employee’s agreeance first.
You can direct employees not to travel for business purposes, however you cannot direct an employee not to undertake personal travel.
You can however explain your obligations to all staff and request they consider the necessity of the travel, and ask them to advise you of any planned international travel so that you can discuss a plan upon their return ie self isolation, working from home and discuss their rights to leave etc.
You can explain that they may be required to take annual or unpaid leave (if they don’t have annual leave) if they are forced into isolation upon their return and they have knowingly travelled to a risk area. When COVID-19 first came into the forefront it seemed as though Employers would need to pay employees if they were isolated, but now the government has advised not to travel anywhere it’s a grey area if people travel against government advice and knowingly put themselves at risk.
Watch this space! PeopleStart will keep you updated in this regard, just sign up to our mailing list.
All employers need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 in their workplace.
Identify and communicate objectives, including one or more of the following:
- reducing transmission among staff,
- protecting people who are at higher risk for adverse health complications,
- maintaining business operations, and
- minimizing effects on other entities in the supply chains.
Some of the key considerations when making decisions on appropriate responses are:
- Disease severity (i.e., number of people who are sick, hospitalization and death rates) in the community where the business is located. Since the intensity of an outbreak may differ according to geographic location, local health officials may be issuing guidance specific to their communities
- Reviewing your business continuity plan is always important but it is critical that you do it now. Make sure you and your team members are aware of what you need to do should something happen. Also make sure your list of employees is up to date and available to access remotely – you too may get sick.
- Impact of disease on employees that are vulnerable and may be at higher risk for adverse health complications. Inform employees that some people may be at higher risk for severe illness, such as older adults and those with chronic medical conditions.
- Prepare for possible increased numbers of absences due to illness in employees and their family members, dismissals of early childhood programs and K-12 schools due to high levels of absenteeism or illness:
Employers should plan to monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher than usual absenteeism.
Cross-train personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.
Assess your essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed).
In some cases you may need to shrink or add hours to meet the needs of your customers or your staff. o Employers with more than one business location are encouraged to provide local managers with the authority to take appropriate actions outlined in their business continuity plan based on the condition in each locality.
If you suspect an employee has coronavirus, you should first consider the level of risk. If you know where they have recently travelled, you should check the current official advice for that country.
If you don’t know that information, you can ask for it, or ask whether they’re feeling well. However, they are not required to answer.
Instead, you may ask them to visit a doctor and obtain a medical certificate declaring them fit for work.
If you suspect a staff member may have Coronavirus, it is important to place them in a private room away from others and ask them to wear a face mask. Immediately notify your local health authority for details on what to do next. They will provide you with guidance.
Remember, employees are only required to use their personal leave entitlements once they have been declared unfit for work.
Employers can direct employees who are sick with the coronavirus not to come to work and to get medical clearance from a doctor before returning to work. Employers can do this if they’re acting reasonably and based on factual information about health and safety risks, which includes relying on the Australian Government’s health and quarantine guidelines.
If your employee has informed you they have been diagnosed with coronavirus, treat this situation as you would any sick employee. Full-time staff accrue 10 days of sick or carer’s leave each year. Employees may use their sick leave if they are not fit to work. If the employee uses up all of their sick leave, they may remain employed on unpaid leave.
Employers should consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
If the employee’s absence is greatly affecting the business’ productivity (over an extended period of time), you could consider hiring a contractor to cover the ill employee until they’re well enough to come back to work.
If the employee is fit enough to work remotely, ensure they have all the relevant equipment to do this for at least 14 days to avoid workplace contagion.
Again, under the Fair Work Act, an employee is protected from being dismissed because of their temporary absence due to illness or injury.
The Fair Work Act does not have specific rules for these kinds of situations so employees and employers need to come to their own arrangement.
This may include:
- working from home or another location (if this is a practical option), noting they should review any applicable enterprise agreement, award, employment contracts or workplace policies
- taking sick leave if the employee is sick
- taking annual leave
- taking any other leave available to them (such as long service leave or any other leave available under an award, enterprise agreement or employment contract)
- arranging any other paid or unpaid leave by agreement between the employee and the employer.
Leave entitlements which apply are subject to whether the worker is actually sick or requires testing for the virus.
If a worker has been told to remain at home and isolate themselves as a result of fears of exposure, they must be paid as usual. This even extends to precautionary measures – being told to isolate as a result of the outbreak for a period of time to be ‘on the safer side’, this technically counts as a suspension from work and means that the worker should continue to get paid normally, without the need for any leave.
That is, unless in some circumstances they have ignored smart traveller or Government advice and have gone to an area which they have been advised not to travel. It may work out that employers would not have to pay in this instance, but, as this is an unprecedented event – we will have to watch this space for now!
If an employee cannot work due to travel restrictions (for example, they are stuck overseas), they are not entitled to be paid (unless they use paid leave entitlements). Again, employers should consider whether their obligations are impacted under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Employers will need to balance the short-term cost associated with these measures against the longer-term benefits that may arise.
Workers’ compensation arrangements differ across state schemes however there are common threshold requirements that would apply in the case of COVID-19:
- that the worker is covered by the scheme, either as an employee or a deemed worker
- that they have an injury, illness or disease of a kind covered by the scheme, and
- that their injury, illness or disease arose out of, or in the course of, their employment.
Compared to work-related injuries, it is more difficult to prove that a disease was contracted in, or caused by, particular employment. In the case of a virus such as COVID-19, establishing the time and place of contraction may become increasingly hard. Whilst the spread of COVID-19 is contained, it may be easier to establish whether contraction is work-related, for example, if in the course of their employment a worker travels to a high-risk area with a known viral outbreak or interacts with people who have contracted the virus. However, once the virus becomes more wide-spread in the local community, establishing the degree of contribution of a worker’s employment to their contraction of the virus will inevitably be more difficult.
Whether a claim for workers’ compensation for contracting COVID-19 is accepted will be a matter for the relevant workers’ compensation authority, applying their jurisdictions’ workers’ compensation laws. Workers’ compensation authorities will consider each claim on its merits, with regard to the individual circumstances and evidence.
Typically, if an employee is willing and able to work but you choose to shut down the workplace you need to be prepared to continue paying them at their base rate - however, depending on your business circumstances COVID-19 closures as a ‘stand down’.
A stand down is where an employee or group of employees cannot be usefully employed for a period because of a stoppage of work for which the employer cannot reasonably be held responsible. In this case then you may ‘stand down’ that employee or group of employees for that period without pay.
Shutdowns without pay are usually seen as a last resort.
This means you should have exhausted all options available to you such as working from home, and having asked employees to take available paid leave such as annual leave before considering standing down without pay.
As with many other COVID-19 related decisions you should consider balancing affordability, culture and engagement with the law before deciding what to do. Natural disasters and pandemics, such as the current COVID-19 pandemic, can place businesses in circumstances where they are unable to usefully employ an employee or group of employees
Also check your employment contract and policies in relation to shutdown periods. If you have a stand down provision in an enterprise agreement or an employment contract you must get specific advice on the terms of this before implementing a stand down as the general rules may not apply to you. Reach out to PeopleStart to assist if you need advice.
It is vitally important that the rationale and implementation of a stand down direction is conducted in accordance with the relevant provisions of the legislation.It is critical that there is a stoppage of work to trigger a stand down. That is, all or part of the business must cease operations in order to lawfully stand employees down without pay.
So, you need to ask yourself:
- Is there a stoppage of work?
- Is it for a reason reasonably outside your control?
- Can the affected employees be employed to perform useful work?
You cannot stand down an employee if there is useful work available within the ambit of their usual job and employment contract (focus on the employees role and job description to make this assessment). Useful work does not have to be the work that the employee ordinarily performs but needs to be genuine productive work not made up work.
Again, Employees should be offered the opportunity to take any paid leave that they have available during a period of stand down. These options are illustrated in the following examples:
Assume that you run a restaurant. You have 11 full-time employees - three Chefs and seven floor staff and a bar person. All three Chefs call you and say a friend has been tested for COVID-19 and they need to self-isolate for 14 days. You ring around and find no replacement Chefs.
Working from home won’t help your type of business and until the Chefs come back you decide that you are left with no choice but to shut the business. All of your employees are new and have very small annual leave balances which they exhaust in the first week after the Chefs are isolated.
You are struggling to manage the cost of the rent with no trade and decide that the only option is to stand down the remaining employees without pay because you simply cannot function the business without the Chefs.
You provide the employees with a properly drafted letter implementing the stand down.
This would be a proper basis to implement a stand down without pay for the remaining employees.
The Government issues orders or advice to the community that all businesses are to be closed except food shops and pharmacies. You run a car mechanic workshop.
This would satisfy the stoppage of work trigger but you still need to consider whether the employees can be usefully employed; working from home etc.
You get the team to clean up the workshop for the first couple of days and then ask them to take annual leave.
Unfortunately their annual leave is exhausted before the Government shut down ends and you are left with no choice other than to implement a stand down without pay. You provide the employees with a properly drafted letter implementing the stand down. This would be a proper basis to implement a stand down without pay for the remaining employees.
Your business makes pizza ovens and is unable to obtain parts essential to manufacture the ovens from China as a result of backlogs from your supplier. You have explored whether your employees can be usefully employed on anything else but they cannot.
You provide the employees with a properly drafted letter implementing the stand down.
This would be a proper basis to implement a stand down without pay for the remaining employees.
Example 4It’s June 2020 and your shop has been hit hard by COVID-19. Sales are down 40% but so far the Government has not instituted a close down like the one in Spain and Italy. You have cut all the casual employee hours and you are now unsure whether you can keep the door open. Your permanent employees have exhausted their annual leave allowing you to run a skeleton roster for a period.
Having some customers is good but it’s not enough to keep you going. Can you shut the business and stand the employees down without pay?
This is a difficult example and will require a detailed discussion about your circumstances
You will likely be able to implement a stand down at some point in this situation, but given the potential significant ramifications of getting a stand down direction wrong if this is your situation please exercise caution and call us for specific advice.
Please contact PeopleStart if you need advice specific to your business circumstances.
It is important to note that stand downs are temporary in nature and are intended to ‘freeze’ the employment relationship as an alternative to termination.
Employees cannot be stood down indefinitely and, if it becomes clear to the employer that they will not be in a position to resume their employment, the employee would still be entitled to any termination benefits that might ordinarily apply (e.g. notice and redundancy pay).
If you decide that redundancies are required, it is important to remember there are three requirements for a genuine redundancy to best avoid an unfair dismissal claim:
1. The business must no longer require the person's job to be performed by anyone because of changes in operational requirements; an
2. The business must consult with any employees who are covered by a modern award or enterprise agreement (in accordance with the relevant consultation provision); and
3. It must not have been reasonable in all the circumstances for the person to be redeployed within the business or an associated entity.
If redundancies are implemented, you must consider your obligation to provide:
- redundancy pay;
- provide notice of termination (or payment in lieu);
and other statutory or contractual entitlements.
You can find more information on redundancies here
Availability of personal leave
If an employee informs you that they have contracted the Coronavirus or need to care for a member of their immediate family or household who has contracted Coronavirus, then they will be entitled to take personal leave under the NES.
However, personal/carers leave is not available where an employee has come into contact with a person who has Coronavirus or where an employee returns from travel to a high risk area as outlined above, but is not yet sick themselves.
This is because, to qualify for personal leave, an employee must be “not fit for work” because of an illness or injury affecting them. It is unlikely that this pre-requisite will be met by persons who are not yet diagnosed as ill but merely require isolation.
How should an employer pay employees who are isolated, but not diagnosed with Coronavirus?
Given the likely inability to provide personal leave in cases where employees require isolation but have not been positively diagnosed, in most cases, employers should look to utilise practical solutions to address the employee’s absence.
By way of example:
- In some cases, employers could permit the employee to work from home. This ensures a level of productivity is retained and will allow the employee to continue to be paid wages during the isolation period; or
- where working from home is unavailable, employers may wish to provide discretionary paid leave to employees so that they do not suffer from a loss of pay during the isolation period.
As an employer it is worthwhile considering whether discretionary options such as those above can be accommodated. Employers will need to balance the short-term cost associated with these measures against the longer-term benefits that may arise.
What if I am unwilling or unable to make payments to an employee who needs to be isolated (but is not diagnosed with Coronavirus) during this period? For some businesses, it might not be feasible to pay employees who are required to self-isolate.
If an employer is unwilling or unable to pay employees whilst in isolation and an employee maintains that they are able to work, then employers face a difficult scenario: the employee says they are fit to work, but the employer has concerns that the employee is not fit to work without posing unacceptable safety risks to the workforce.
The best means of resolving this impasse is to direct the relevant employee to undergo testing if testing is available.
Once the test is undertaken, if the employee is cleared, they are able to return to work (best practice would dictate the employer pays the employee for the relevant period). If the employee tests positive, then they can be permitted to take personal leave for the duration of their absence.
What if testing is unavailable for employees in isolation? It is uncontroversial that:
- It is an inherent requirement of any employment contract that employees are required to carry out their employment without endangering the safety of other persons; and
- in order to be paid for their service, employees need to be “ready, willing and able” to work.
These principles will govern an employer’s approach to employees who are told to isolate in circumstances where testing is unavailable (or refused by the employee).
Broadly speaking, two scenarios are likely to arise
- Firstly, in some cases, an employee may have had levels of contact with persons exposed to Coronavirus which means the risk to safety presented by the employee’s presence at work is materially greater than other employees. By way of example, if an employee has just returned from mainland China or has been living with a person who has contracted Coronavirus, the employee will likely present significantly greater risks to the workforce than most other workers.
- In other cases, an employee might have had a level of contact that causes an employer some anxiety but not material concern - by way of example, the employee’s child might have attended a school where there was a Coronavirus diagnosis or the employee may have returned from travel to an area designated by the Australian Government’s health advice as ‘moderate risk’. Whilst there is some risk associated with contact with the relevant employee, the risk might not be materially greater than that posed by other workers who have been to supermarkets, gone to a football match, etc.
In the second scenario, it is unlikely that an employer will have a legitimate basis to direct an employee to stay away from work without pay. Rather, if the employer is directing the employee to remain away from work, the employer will need to pay the employee for the relevant period.
In the first scenario, a level of debate is likely to arise. However, provided the employer can demonstrate the relevant employee poses a sufficiently material risk to health and safety that cannot be mitigated, there is a reasonable basis for the employer to contend that the employee must stay away from work on unpaid leave (or annual leave if requested) until such time as the material risk dissipates (according to current Australian Government advice, this is likely to be a period of 14 days from possible exposure).
This is because the employee is unable to presently work without posing unacceptable risks to health and safety.
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