Coronavirus: what if healthy employees refuse to attend work?

If an employee refuses to come to work, or undertake work-related travel, because he/she is concerned about possible exposure to the coronavirus, it basically comes down to whether the employee has legitimate concerns for his/her safety. If not, then you can direct the employee to attend work or travel, and if the employee refuses, the employer can consider applying the usual disciplinary sanctions for non-attendance.

Note that this blog covers healthy employees who want to stay away from work, not employees whom the employer has directed to stay away.

What makes concerns legitimate?

• The employee is following advice or directives issued by the government or a health authority/agency.
• The employee falls under the category of people most at risk of serious infection as identified by the Department of Health.
• There is firm evidence that the employee could be exposed to the risk of coronavirus exposure, for example if the employer has failed to implement adequate procedures at the workplace. The onus is on the employer to demonstrate implementation.
• The employee has raised reasonable concerns with the employer, but the employer has not responded to them.
• The work involves travel, and there is inadequate or no information available as to whether the risk of exposure could arise. In such cases, the onus is on the employer to verify that travel is safe. Alternatively, if an official warning about the travel destination has been issued (or a ban on travelling there), the employer cannot force the employee to travel.

What if the employee’s concerns are not legitimate?

If the employer’s directive to attend work or perform other duties in the course of work (eg travel) is lawful and reasonable, and attending work would not expose the employee to risk, the employer is not required to pay an employee who refuses to attend (subject to any award or agreement provisions that provide otherwise, which is unlikely). The employer also has the option of treating it as a disciplinary matter, again subject to any provisions covering the employee’s employment.

The employer can, however, choose to pay the employee or treat the matter as paid (or unpaid) leave, the latter again subject to any relevant provisions.

Constraints on employer actions

Workplace health and safety legislation imposes a statutory duty on employers to provide a safe and healthy workplace for all employees and other people who attend the workplace. This includes taking all reasonably practicable steps to eliminate or at least minimise exposure to health and safety risks.

An employer cannot take adverse action against an employee for raising concerns or complaining about possible risk of exposure to coronavirus. To do so would be likely to breach the general protection provisions of the Fair Work Act 2009.

Given the current situation of daily developments and revelations about coronavirus, information quickly becoming outdated, widespread misinformation, and very large-scale community concern (eg panic buying of household supplies), it can be argued that almost any health and safety concern raised by an employee will be a “reasonable” one and no action should be taken against an employee for raising it.

Recommended practice is to discuss the concerns with the employee and provide evidence that those concerns have been addressed and/or that the employer’s actions are authorised (eg in compliance with government or health authority directive or recommendation).

To reassure concerned employees, an employer can also consider taking the following actions:

• Allowing employees to work from home or remotely – but encourage them to implement appropriate hygiene procedures at home and consider providing them with work equipment to perform the job, eg laptop
• Arranging private transport to/from work for employees who normally use public transport
• Taking a more flexible approach to the use of leave entitlements
• Upgrading hygiene procedures at the workplace, such as requiring regular washing of hands, cleaners cleaning lift buttons (and any regularly used surface areas), providing hand sanitiser dispensers at entry points, and wearing face masks – whether or not outside directives or available evidence require it

Bear in mind when dealing with employees that many are very scared and highly emotional about coronavirus. Even if they are misinformed or misguided, their fears are understandable in the current climate. Empathise with them and talk to them calmly and rationally.

Can an employee who refuses to attend work be dismissed?

In extreme cases, yes. However, the following circumstances would need to exist:

• The employee had refused multiple directives to return to work.
• The employer has firm evidence that the workplace does not pose a risk to him/her, and has made the employee aware of it.
• It is not reasonably practicable to make some other temporary arrangements, eg work from home, paid leave.
• The employee has been issued at least two written warnings that continued refusal to attend work may result in dismissal.
• The employee has had an opportunity to explain why he/she will not attend work and the employer has taken the explanation into account before deciding whether to dismiss.
• You should also consider factors such as an employee’s length of service, family circumstances and their employment prospects before deciding whether to dismiss. The Fair Work Commission will take those issues into account if an employee lodges an unfair dismissal claim.
• The employer implements dismissal in compliance with the law and award/agreement provisions, eg notice period, pay in lieu of notice, payment of other entitlements.

But even if all the above requirements are met, dismissal, or even stand-down without pay, is a risky step to take. In the current highly emotive climate, a headline that an employer dismissed an employee for being concerned about coronavirus exposure would be a bad look and hard to defend.

Also, take into account that taking firm action against an employee who refuses to attend work may encourage genuinely ill employees to attend work when they should be in isolation.