- The employment implications of COVID-19 are widespread.
- The availability of paid leave in certain circumstances is unclear.
- Up to date and reliable information needs to underpin employment decisions.
The very size and nature of a workplace makes it an area of high risk for the spread of COVID-19, with the additional feature that it is subject to a high degree of control by the employer. It is hardly surprising, therefore, that employers around the world have been called upon to play a leading role in containing COVID–19 (World Health Organisation ‘Getting your workplace ready for COVID-19’).
The unprecedented disruption arising from COVID-19 has created enormous uncertainty for employers and employees. Unfortunately, there is no legislative ‘playbook’ for many of the issues that have arisen, and reasonable minds differ on what the appropriate response should look like and the legal consequences that may follow.
Against the backdrop of a rapidly changing environment, this article explores some of the key issues for employers and employees in their role trying to contain the virus.
Work Health and Safety
One area of agreement, and the starting point for most workplace decisions on this topic, is the need to ensure workers’ health and safety (‘WHS’).
WHS laws require a person conducting the business or undertaking to eliminate or reduce a risk to workers so far as is reasonably practicable. This includes providing and maintaining a workplace that is without risk to health and safety.
Of course, workers also have duties to take reasonable care for their own health and safety, and the safety of others, and to comply with reasonable instructions and policies relating to WHS.
The range of control measures implemented to address the risk of COVID-19 vary. As a minimum, all workplaces are expected to have basic hygiene advice and facilities. There is also the obligation to provide any information that is necessary to protect persons from risk arising from work. There are a range of resources now available that assist employers, including material by the World Health Organisation, a comprehensive a publication produced by WorkSafe Victoria providing comprehensive guidance on ‘Preparing for a Pandemic‘, and the establishment of specialised COVID-19 websites by Safework NSW, Safework Australia and Comcare with links to a range of other resources.
Increasingly, and underpinned by WHS duties, widespread isolation measures are being implemented that prevent employees from attending the workplace, and require employees to work from home where possible. Such instructions are plainly reasonable and lawful. A range of other employer instructions may be appropriate, including confirmation of the need for self-isolation in accordance with the Federal Government Department of Health guidance.
However, as scenarios evolve, the lines of what is a reasonable and lawful instruction become blurred. For example, in normal circumstances, an employer has little influence or control over the travel plans of employees outside of work, but at the very least, it is likely to be reasonable to expect employees to abide by the travel advisories of the Australian government (smarttraveller.gov.au). There may also be scenarios where employees, with a genuine concern for their welfare, wish to stay at home despite the workplace being open.
Then there is the vexed issue about how to deal with the necessary absences from work.