By and -

Snapshot

  • 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.

Leave entitlements

The Fair Work Act 2009 (Cth) (‘FW Act) contains a number of provisions relating to the taking of paid and unpaid leave. The language used in the FW Act is generic, and hence seemingly extensive, as to the circumstances under which employers could deal with employee absences from work. Unfortunately, COVID-19 asks more questions than the FW Act can answer.

For example, if an employee is not fit for work because he or she has contracted COVID-19, or a family member or member of the employee’s household falls ill and requires care or support because of COVID-19, the employee can access paid personal/carer’s leave. However, what happens when that runs out? Many employers are offering paid personal leave in advance, though this is not an option that sits comfortably with the provisions of the FW Act. There is greater flexibility to allow annual leave to be taken in advance, though agreement is typically required.

Another common scenario is where an employee is directed to be isolated and confined to their home, but is not diagnosed with COVID-19 nor displaying any symptoms of the virus. Paid personal/carer’s leave is not strictly available because the employee is not suffering a personal illness or injury. Despite this, many employers are using paid personal leave to relieve the financial hardship on employees, and to avoid having the situation of employees attending work to be paid when they are otherwise required to be isolated.

The Fair Work Ombudsman has issued guidance which observes the general position that where an employer directs an employee not to work, the employee is generally entitled to be paid. However, the general position does not account for extraordinary circumstances. Where the employee is required to self-isolate due to a Government direction, the employee will not be able to work, and not because of the employer. In such circumstances, the default position will be that the employee is not entitled to payment.

In between these examples, there may be circumstances where an employee is required to self-isolate by an employer, albeit the circumstances do not fall within the Government direction. The prevailing view appears to be that where an exposure was not known by the employee, and an employer directs the employee to isolate, an obligation to pay the employee will follow. The employee can, in those circumstances, be directed to obtain medical clearance.

Another issue, that is yet to be fully explored, is the use of paid carer’s leave to cover an employee’s absence from work to provide care or support for an immediate family member arising from a sudden school or day care closure – on the basis that this situation constitutes an ‘unexpected emergency’ affecting the family member. It is likely to be an ’unexpected emergency’ when the closure is at very short notice, such as an immediate response to a student testing positive. Where the Government shuts schools on the provision of a number of days’ notice, however, may be a different outcome.

Overall, the FW Act contains various options to consider in these circumstances, without a clear answer to all scenarios. There is a limited capacity under the FW Act to direct employees to take leave. The options appear to include:

  1. making arrangements for remote working;
  2. if remote working is not practicable, then the response may be to suggest an employee take:
    1.  annual leave;
    2. any other leave available to an employee (such as long service leave or any other leave available under an award, enterprise agreement or contract of employment); or
    3. any other paid or unpaid leave by agreement between the employee and the employer, including personal leave.

To address the gap in the FW Act provisions and accompanying concerns, unions and employee representatives have been calling on the Federal Government to fill the gap left by current workplace laws by introducing government-financed special paid leave to cover employees during periods of self-isolation. In addition, gig economy participants such as Uber and Foodora have taken the unprecedented step of announcing they will provide financial support for drivers and riders diagnosed with coronavirus or placed in quarantine by a public health authority.

Information required to be provided by an employee

Other practical issues emerge. For example, the typical requirement for the taking of personal/carer’s leave is that the employee must give the employer evidence that would satisfy a reasonable person that the employee was genuinely entitled to the personal/ carer’s leave, if required by the employer. Consideration may need to be given to the extent to which it is practicable to require employees to provide a medical certificate if there is a significant COVID-19 outbreak, if government guidance and/or directions require people to stay at home except in an emergency.

There is also the need for ‘self-reporting’. Employers can reasonably require that an employee would notify an employer they are ill with COVID-19, or fall within the category of employees required to self-quarantine in accordance with government guidelines (e.g. because they have had contact with another person with COVID-19 or have travelled to a restricted country).

Stand down

Of increasing relevance is a question of the capacity, and need, for an employer to ‘stand down’ employees. A stand down without pay is available under the FW Act where an employee is unable to be usefully employed because of a stoppage of work for any cause for which an employer cannot reasonably be held responsible. The stand down provisions in the FW Act only apply where there is no stand down right in an enterprise agreement or contract of employment.

The concept of ‘stand down’ emerged as an alternative to termination of employment. From this perspective, it was seen as mutually beneficial to employers and employees. While it is always an exploration of the facts, the bar to activate the stand down provisions is high. A stoppage of work for reasons outside the employer’s control needs to arise for stand down to be available, so it is not often activated where there is an apprehension of a stoppage or preventative measures are put in place. There is also the requirement that an employee cannot be usefully employed. COVID-19 is likely to explore these boundaries, if not legally test them.

Discrimination and harassment

Where the hoarding of toilet paper may be characterised as a curious behaviour, reports are emerging of the more serious issue of discrimination or harassment against people who have contracted the virus, and more generally, people of an ethnic or perceived ethnic background.

Legally, employers need to take all reasonable steps to prevent employees behaving in an unlawful manner towards fellow employees, customers, clients or members of the public. Taking reasonable steps might mean having well-publicised diversity and harassment policies, and training all staff on the issue. Managers in particular must be trained about their responsibility to identify and prevent discriminatory behaviour, and respond to harassment and bullying type behaviour.

Of course, the legal touchstone of discrimination, harassment and bullying is one thing. Most employers expect leadership in the form of a professional and considered response, absent of fear-mongering, gossip or ‘bullying like’ behaviours.

Employers themselves also need to be mindful that the contracting of COVID-19 will likely be a ‘disability’ for the purposes of anti-discrimination laws. Employers will need to be on alert and be aware that conduct may be unlawful even if it arises from a genuinely held fear about the COVID-19 virus. Decisions need to be made on appropriate and reasonable grounds.

Conclusion

This all adds up to the need for a calm, considered and measured response. Some high level, and far from exhaustive, principles are:

  • Stay abreast of the current information available regarding COVID-I9 including guidance from the Federal Government. Current information will be critical to an employer’s perspective on the impact of the outbreak on your people and business.
  • Establish clear protocols to ensure that employees provide relevant information regarding their own circumstances to enable you to assess and manage the risks posed to the workplace, and ensure you have the ability and resources to act swiftly in the event that employees and others are exposed to a direct COVID-19 risk at the workplace. There are already cases where employers have had to evacuate their workplace in this situation – consider what procedures need to be in place to deal with this situation should it arise, and that everyone understands what to do. Review your existing flexible working policies. Ensure that your policies clearly set out what is required of employees working from home, and provide for a situation where an employee is required to work from home for an extended duration due to a COVID-I9-related reason.
  • Consider what arrangements you have in place to manage a situation where an individual contracts the virus or is otherwise in a high risk category. Managers need to understand the support available to deal with difficult and often untrammelled areas.
  • Continue business continuity planning. A large proportion of employees may be working from home at a particular time.
    What steps will you put in place to support their well-being in what threatens to be a highly anxious environment for many?  Are employees aware of their on-going obligations around confidentiality and safe work practices when working at home?  How will teams communicate?  How will you supervise and manage performance?  How will you manage your record-keeping obligations, including keeping records of hours worked by award-covered employees (including overtime hours)?

Jack de Flamingh is a Partner and Heidi Fairhall is a Special Counsel, at Corrs Chambers Westgarth.