The Coronavirus pandemic sadly presents one of the greatest challenges in our lifetime, to our health and way of life, among other things. The Coronavirus pandemic has raised multiple ongoing concerns and issues in workplaces across Australia. In this update, we consider some of the questions employers and employees are grappling with as this situation continues to unfold.
What should employers be doing to satisfy their health and safety obligations? Under Victorian OHS legislation, an employer must, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health. Similar obligations apply under legislation in places in other States and Territories and under the “common law”.
Employers should consider additional steps which may be necessary at this time, in order to satisfy these obligations. WorkSafe Victoria has published a Safety Alert which states that “employers must identify whether there is a risk to health of employees from exposure to Coronavirus at their workplace”. This may include:
- monitoring expert advice as the Coronavirus situation develops;
- reviewing infection control policies, procedures and practices;
- educating and keeping employees up to date on new information;
- monitoring the latest travel advice;
- considering whether work activities put other people at risk;
- talking to employees who have travelled or are planning to travel for work and/or have been in contact with confirmed cases of Coronavirus.
Victorian OHS legislation also requires employers to monitor the health of employees and monitor conditions at any workplace under the employer’s management and control. Similar legislation applies throughout the remainder of Australia.
It is also important to bear in mind that employees also have obligations to take reasonable care for their own health and safety and the health and safety of their colleagues. This may include staying away from work if they are infected with Coronavirus or have been in contact with a confirmed case of Coronavirus.
Can employees access paid personal/carer’s leave to stay home as a precaution or to self-isolate? Under the National Employment Standards (NES), a permanent employee may access paid personal/carer’s leave if the leave is taken:
- because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee (personal leave); or
- to provide care or support to a member of the employee’s immediate family or household, who requires care or support because of a personal illness, personal injury or unexpected emergency affecting that person (carer’s leave).
The right to take personal/carer’s leave is subject to various notice and evidence requirements and the employee having a sufficient accrued leave balance.
If an employee is absent from work as a precaution or to self-isolate, and the employee does not fulfil the requirements in the NES for taking paid personal/carer’s leave, then the employee may not be entitled to access paid personal/carer’s leave pursuant to the NES.
Employers and employees may agree on arrangements such as taking another form of accrued leave or working from home (subject to any health and safety considerations and other relevant obligations).
Employers should also bear in mind their health and safety obligations in respect of other staff and visitors, which may be impacted by an employee attending work who suspects they have been exposed to Coronavirus.
Can employees be stood down or directed to take leave? Under the Fair Work Act, employees can be stood down without pay when they cannot usefully be employed because of industrial action, breakdown of machinery or equipment or stoppage of work for which the employer cannot reasonably be held responsible. Enterprise agreements and employment contracts may contain different provisions.
Stand down is not generally permitted on the basis that there has been a downturn in business or there is not enough work for the employee to do. However, other stoppages related to Coronavirus may justify a stand down under the Fair Work Act, for example, if the employee is temporarily prevented from accessing the work premises (depending on the duration and cause of that situation).
Under the NES, an employer can direct an employee to take annual leave:
- if an enterprise agreement or industrial award applies: in accordance with the terms of that instrument, if the requirement is reasonable; or
- if no enterprise agreement or industrial award applies: if the requirement is reasonable.
Whether the requirement is “reasonable” will generally depend on the reason for the direction, the duration of the directed leave and how much leave the employee has accrued.
Employers and employees can also agree that an employee will take annual leave. This may be a practical solution if, for example, there is a “lock down” preventing the employee attending work or if there is not enough work to occupy the employee.
Other issues Employers should also consider other related obligations, for example, under discrimination legislation and under any applicable enterprise agreement, industrial award or contract of employment.
Ideally, employers and employees should discuss and try to agree on arrangements for work during this situation.
At this challenging time, the need for level heads, flexibility, understanding and innovative ways of keeping businesses afloat and workers employed is greater than ever.