COVID-19 is rapidly encroaching on all facets of Australian life and business. Regrettably, known cases of COVID-19 in Australia are presently increasing. Businesses are naturally concerned about the health and safety of their workforce and ensuring ‘BAU’ as far as possible. This bulletin is intended to provide some clarity amongst the confusion for employers asking the question: what are my obligations under Australian employment law?
1. Are employers subject to any specific legislation in respect of COVID-19?
- 1.1 Each State and Territory in Australia has enacted revised health legislation or invoked powers under existing health legislation in response to COVID-19. While most of the measures imposed by these instruments operate at the individual level, such as requiring individuals to undertake a period of 14 days isolation in designated hotels under the supervision of the Australian Defence Force following return from overseas, these measures will impact an employer’s ability to issue certain directions to their employees. In addition, all States and Territories have banned gatherings of more than 2 people, subject to exceptions which vary from State to State. Employers must be vigilant to ensure that they do not organise or require employees to attend any gatherings in the course of their duties. There are stringent penalties for breaching self-isolation requirements, ranging between around $6,600 and $50,000 (depending on the State or Territory) and potential for imprisonment in some States.
- 1.2 In addition to these health directives, employers remain subject to their ordinary statutory and contractual obligations in relation to employment, work health and safety, and anti-discrimination.
Work health and safety (WHS) legislation
- 1.3 Every State and Territory in Australia has strict WHS legislation (with all States and Territories implementing the model WHS laws, save for Victoria and Western Australia). While there are variations between the States and Territories, in essence every ‘person conducting a business or undertaking’ must ensure, so far as is reasonably practicable, the health and safety of workers engaged or caused to be engaged by that employer. To meet this duty, employers must identify risks at the workplace, and take all reasonably practicable steps to eliminate those risks or, if not reasonably practicable, minimise those risks.
- 1.4 There are severe penalties that apply for breaching the WHS legislation, ranging into the millions of AUD and, in some instances, could result in the imprisonment of directors/officers. The WHS regulators have been enforcing these obligations in relation to COVID-19, with an improvement notice issued to Qantas concerning inadequate systems of work in place to clean aeroplanes that may have transported infected passengers.
- 1.5 Workers also owe obligations in respect of their own health and safety, and that of their colleagues.
- 1.6 This is significant in the context of COVID-19: employers must take all reasonably practicable steps to eliminate or manage the risks arising from COVID-19. This includes implementing appropriate control measures such as:
- (a) not requiring an employee to attend the workplace if work can be performed from home. In New South Wales by Government order issued on 30 March 2020, it is unlawful for a person without ‘reasonable excuse’ to leave their residence. If work can be performed from home, the employee will not have a reasonable excuse and will potentially face fines of up to $11,000 and/or 6 months imprisonment;
- (b) enforcing social-distancing rules such as two individuals should not stand closer than 1.5 meters apart and one person to occupy 4 square meters of indoor space;
- (c) limiting the number of workers who travel together. Current advice is that no more than 1 person should travel in an elevator at a time;
- (d) requiring workers to practice good hygiene, including frequent hand washing, limiting contact with others, and covering mouths while coughing or sneezing with a tissue or crook of their elbow;
- (e) providing workers with appropriate personal protective equipment and facilities, and information and training on how and why they are required to use them;
- (f) limiting unnecessary access to the workplace by other people; and
- (g) cancelling or postponing work-related travel (domestic or international) and alternative methods of communication, noting that many States have ‘closed their borders’ to domestic travellers.
- 1.7 Employers must be mindful that the model WHS laws apply wherever a worker performs work. This means that an employer’s WHS obligations apply even when an employee works from home.
- 1.8 Although employers may not have time to conduct a comprehensive risk assessment of the home workplace due to the rapidly evolving situation, employers are required to take proactive measures to ensure their employees’ WHS while working from home including:
- (a) providing information to staff about how best to set up their home workplace to be safe (e.g. ergonomics);
- (b) ensuring that staff have the necessary equipment to work from home (e.g. a laptop, office chair or extra screen);
- (c) ensuring that IT systems enable the ability to work from home;
- (d) establishing alternative communication methods such as Skype or Zoom; and
- (e) ensuring regular communication with employees, including providing access to an employee assistance program where possible and appointing a contact person in the business for workers to speak to about concerns.
Contractual and other entitlements
- 1.9 Employers must also ensure to comply with any obligations under their employees’ contract of employment and any applicable modern award or enterprise agreement.
- 1.10 Employers owe an implied contractual duty to take reasonable care for the safety of their employees, including their psychological health.
- 1.11 Employers should take care to comply with any consultation requirements contained in applicable modern awards or enterprise agreements, which could place an obligation to consult with employees about workplace changes implemented as a result of COVID-19.
- 1.12 Employees are protected from discrimination or victimisation as a result of the exercise of workplace rights, such as the right to make complaints or inquiries in relation to their employment (such as about COVID-19 measures in place) or the right to take personal/carer’s leave.
- 1.13 Employees are also protected from discriminatory treatment in the workplace due to their race (such as if they are of Iranian, Chinese, South Korean or Italian descent).
2. Can an employee refuse to attend work because they are concerned about contracting the virus?
- 2.1 Employees who wish to stay at home as a precaution, but are not subject to a direction from their employer or the government, need to come to an agreement with their employer. This may be in the form of a request to work from home, if that works practically for the workplace, or an application for annual or sick leave (provided preconditions are met).
3. What should an employer do if an employee is suspected/confirmed as having the virus?
- 3.1 Given employers’ and employees’ respective WHS duties, employees who are suspected or confirmed as having COVID-19 should be directed not to attend the workplace while they are unwell. The employer must take active steps to ensure that the employee does not attend the workplace until sufficient time after their illness as required by the current medical advice. If an employee attends work whilst unwell, in breach of an employer’s direction not to do so, given the present unique circumstances, disciplinary action may be warranted.
- 3.2 An employer can direct employees who are confirmed as having COVID-19 not to come to work, and to obtain a medical clearance before returning to work. Any such direction must be reasonable and lawful, and based on actual information about WHS risks arising from COVID-19.
- 3.3 If an employee is suspected or confirmed as having COVID-19 and required to remain at home, they may:
- (a) work from home, receiving their ordinary pay, provided they are well enough and their workplace and position support working from home arrangements; or
- (b) use accrued paid personal leave if they are too unwell to work. If the employee runs out of accrued personal leave, they may take unpaid personal leave or utilise accrued annual leave.
4. What information is an employer entitled to require from its employees about their exposure to the virus?
- 4.1 An employer can (and are advised to) require employees to notify their employer about their potential exposure to COVID-19. This is necessary in order for the employer to determine whether the employee’s presence at work amounts to an unacceptable risk to other workers’ health and whether deep cleaning of a work space ought to occur following an ill employee’s attendance at work.
- 4.2 In the following circumstances employers are encouraged to direct an employee to not attend the workplace:
- (a) if there is a particular reason to suspect that the employee may have been exposed to COVID-19 (such as attendance at an event where persons with diagnosed cases were present);
- (b) if a relative or household member of the employee has tested positive to COVID-19 (and the employee has been in contact with/proximity to that person); or
- (c) if the employee appears unwell or is exhibiting symptoms of concern.
5. What steps should an employer take to ensure it maintains a safe workplace? Are there any statutory requirements or best practice guidelines?
- 5.1 There are currently no prescriptive statutory requirements for employees beyond the obligation to take all reasonably practicable steps to ensure the health and safety of workers. However, a number of steps are available to employers including:
- (a) requiring employees to report relevant matters of concern about their own health and safety;
- (b) encouraging and requiring good hygiene;
- (c) reducing face to face contact, whether that be by requiring employees to work from home, exercise social distancing or utilising audiovisual conferencing facilities;
- (d) where possible, implementing flexible hours of work to stagger the time spent in close proximity with other employees and/or to avoid peak public transport times;
- (e) providing personal protective equipment, where applicable; and
- (f) reducing or eliminating work-related travel, including internal, domestic and international travel.
6. Can an employer require an employee not to attend work as part of its infection control measures?
- 6.1 An employer may direct employees not to attend work as part of its infection control measures if this is a reasonably practicable measure to minimise any WHS risk.
- 6.2 If an employee’s role and the employer’s business is such that the employee can work from home, the employer should ensure that arrangements are in place to enable the employee to work from home.
- 6.3 If the employee’s role is not able to be performed from home, the employer should consider whether there are any suitable alternative roles or duties that can be given to the employee while at home.
- 6.4 If the employer requires a full-time or part-time employee to work from home but there is no role that the employee can reasonably perform, the employer will ordinarily need to pay the employee for the period they are required not to attend work (subject to any requirements in the contract of employment and any applicable modern award or enterprise agreement). This does not apply to casual employees.
7. Does an employer have to pay sick pay to an employee who is self-isolating?
- 7.1 If a full-time or part-time employee is in isolation pursuant to an employer or government directive, where possible work from home options should be utilised. Where this is not possible, one of the following scenarios arise:
- (a) Employee is unwell (diagnosed with COVID-19 or other illness): the employee will, subject to provision of medical evidence, be entitled to take paid personal leave;
- (b) Employee is not unwell and, in the absence of a Government isolation directive, the employee would be required to attend work: the employee is not entitled to personal leave and may request to take annual leave or unpaid leave;
- (c) Employee is not unwell and no Government isolation directive is in place but the employer, as a precautionary measure, directs the employee not to attend the workplace: in the ordinary course full time and part time employees (only) will be entitled to payment at their ordinary pay.
- 7.2 If the employee is voluntarily isolating as a precaution but in the absence of an employer or government directive requiring them to do so (and the employee refuses to return to work), the employer does not have to pay that employee.
8. When is an employer required to close its workplace? If it does, is it still required to pay its staff?
- 8.1 The primary position (absent any particular contractual, award or enterprise agreement specific provision to the contrary) is that full time and part-time employees who are directed not to perform work, are entitled to their contracted full time or part-time wages irrespective of whether work is performed. However, some employers may be able to rely on section 524 of the Fair Work Act 2009 (Cth) to stand down employees without pay if they can establish that the stoppage of work arose from a ‘cause for which the employer cannot reasonably be held responsible’ (for example, a Government directive that the employer cease some or all of its business operations).
9. Is an employer entitled to require its employee to see a doctor? Can an employer require its employee to provide it with a copy of their medical report?
- 9.1 Where an employer has a reasonable basis to suspect that an employee may have COVID-19, the employer can direct its employee to see a doctor. Such circumstances can include:
- (a) attendance at an event where persons with diagnosed cases were present;
- (b) a relative or household member of the employee has tested positive to COVID-19 (and the employee has been in contact with/proximity to that person); or
- (c) the employee appears unwell or is exhibiting symptoms of concern.
10. Can an employee refuse to work with another employee who is suspected of having the virus?
- 10.1 If there is a reasonable basis to suspect an employee of having COVID-19, an employer should not require other employees to work with that employee: to do so would be a breach of the employer’s WHS obligations, and likely a breach of the contract of employment (making a direction that is neither lawful nor reasonable).
- 10.2 If there is not a reasonable basis to suspect the employee of having COVID-19, then an employee cannot lawfully refuse to work with the other employee. In those circumstances, the employer could direct the other employee to work with the other employee, however care should be taken to ensure this is done in a reasonable manner.