The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, leave and accommodation, immigration, and other employment issues. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Australia currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the Australian government.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large.
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
Yes. Employers should restrict travel to countries that have been listed by the Australian Government as “high risk,” including:
- Mainland China
- Republic of Korea
The Australian Government has also listed the following countries as “moderate risk” countries. It is therefore recommended that employers restrict travel to these countries as well:
- Hong Kong
As the virus is continuing to spread globally at alarming rates, it would be wise for employers to restrict all unnecessary travel for a period of time and place restrictions on any work-related events where there will be large crowds or groups.
Failing to implement these types of measures to protect employees could place an employer at risk of a claim under Australia’s state health and safety laws.
The Australian Government travel advisory website is updated regularly and can be found by clicking here.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
If an employee indicates they are planning to travel to an affected area and the reason for travel is work-related, the employer can direct the employee to cancel their trip. An employee’s refusal or decision to travel without consent would be grounds for disciplinary action up to termination of employment for failure to follow the company’s reasonable direction.
If an employee plans to travel for personal reasons, the company can advise the employee that if they proceed with their travel plans they will be required to remain at home upon their return to Australia for a period of no less than 14 days. If the travel has been to one of the listed high-risk or moderate-risk countries, the employer may require the employee to obtain a test to confirm that they do not have the virus. The employer can reasonably request evidence that the employee is clear of the virus if they have been to a high-risk country.
If an employee is required to remain at home following a period of travel to a high-risk or moderate-risk country, the employee should be directed to work from home if the employee’s job is possible to do from home and they have the facilities (for example, a work-issued laptop and mobile phone) to do so. However, if the employee performs a job that is not possible to perform from home, the employer can direct the employee to remain at home and the employee can be required to take whatever leaves are available to the employee, for example, annual or personal (sick leave). If the employee has no available paid leave, they can be directed to take unpaid leave. However, the employer should notify the employee before they travel that they will be required to take leave (paid or unpaid as applicable) if they decide to proceed with their travel plans.
3. How should an employer handle employees who have family members who have traveled to affected areas?
An employer cannot request details pertaining to a third party. If an employee notifies the company that a family member with whom they live or have been in contact has traveled to a high- or moderate-risk country, the employer can adopt the same rules as outlined above in question 2 – the company can request confirmation that the employee has undertaken a screen and is free of the virus, and can direct the employee to work from home until this confirmation has been received. However, the employer will not be able to require the employee to take paid or unpaid leave in these circumstances without the employee’s consent. Employers can send a notification to employees requesting, but not requiring, that they please advise the company if any family or household members have traveled to one of the high- or moderate-risk countries.
4. Can we prevent employees from traveling to affected areas for personal reasons?
See response to question 2.
5. What discrimination issues should employers address/be aware of?
Australia’s discrimination laws protect employees from unlawful discrimination or harassment on the basis of illness/medical condition. The law also protects employees from discrimination on the basis of association with any person with a protected characteristic. As such, employees will be protected from discrimination if they are associated with a person who has the virus. There are also general protections provisions under the Fair Work Act that prevent an employer from taking adverse action with respect to a person’s employment based on a discriminatory ground. An employer is permitted, however, to take actions that would otherwise be discriminatory and a breach of the law if there is a legitimate reason for doing so. In situations of emergency like this, where the health and safety of other employees and customers could be put at risk if certain safety measures are not put in place, the company would be justified in taking the action. For example, directing an employee to remain at home on paid or unpaid leave if they have been in contact with a family member who has the virus may be an action that on its face appears to be discriminatory. In light of the high risk of permitting the employee to return to work before they have received a clear test result, however, it would not be an unreasonable action and therefore would not breach Australia’s discrimination laws or the general protections provisions of the Fair Work Act.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
Employers have a legal obligation to take steps to prevent unlawful discrimination, harassment and bullying on any protected ground, including race, family status, illness or injury (medical condition), association with any person with a protected characteristic, etc. An employer’s obligations include having equal employment opportunity and anti-bullying policies, and periodically training employees on appropriate workplace behavior (approximately every 12 months to 2 years). Employers are also required to take appropriate action when any incident or complaint of discrimination, harassment or bullying occurs in the workplace or at any work-related event.
In light of the current circumstances, employers should consider sending employees a communication to remind them of the company policies regarding discrimination, harassment and bullying, with links or copies of the policies. Employers can also put employees on notice that any conduct violating company policies or the law will warrant disciplinary action up to termination.
7. Can employers take the temperature of employees who are coming to work?
Employers cannot not take the temperature of employees who are coming to work without (a) implementing a policy permitting this after going through a period of consultation with the employees and their representatives (i.e., their union) if any; or (b) an individual employee’s consent. However, even if the employee group or an individual employee consents, it would be unwise for an employer to do this without engaging the services of a trained medical professional.
Additionally, if any employee arrives at work with a suspected fever or illness, the company can direct the employee to leave the workplace and seek medical treatment.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
See the response to question 7.
Because this is a rapidly changing situation, governments are updating their legislation to address the related challenges. Accordingly, employers should consult with their legal counsel to keep updated on any labor and employment law developments.