Bulletin – COVID-19 and measures regarding employees

1. The crisis we are facing needs no explanation and it raises so many questions for employers. This guide reflects our thoughts at this point in the cycle of this unprecedented global event. 

Some introductory points around employees being sent home and employers’ obligations to pay permanent (fulltime/part-time) employees:

1. WH&S obligations - State based Work Health & Safety Legislation entitles you to make decisions about the wellbeing of individual staff and the entire staff.  On that basis, you are empowered to send the worker home where they have had contact with someone who has tested positive for Coronavirus, is exhibiting symptoms of Coronavirus, or where they (or the person they have been in contact with) have returned from overseas.  The incubation period is 14 days which is why the self-isolation has been set for 14 days.
2. Personal leave - employees are entitled to personal (sick) leave where
   1. ‘(a)   …the employee is not fit for work because of a personal illness,…, affecting the employee; or
   2.  (b)  a member of the employee's household, … requires care or support because of
      1. (i) a personal illness, or personal injury, affecting the member; or
      2. (ii) an unexpected emergency affecting the member.’
   3.  
   4. Thus, if the employee is unwell or they are caring for an immediate family member who is unwell, the employee can be paid personal (sick) leave, if they have any.

3. Annual leave - Paid annual leave may be taken for a period agreed between an employee and his or her employer.  Unless an employee has more than 8 weeks accrued leave (potentially less for non-award employees) or where there is business close-down (see 5 & 10 below), you cannot direct an employee to take annual leave.
4. Stand down, s. 524 of the Fair Work Act -
   1. (1)  An employer may, … , stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:
   2. (a)  industrial action;
   3. (b)  a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
   4. (c)  a stoppage of work for any cause for which the employer cannot reasonably be held responsible.(See 4 & 5, below).

2. Employee contracts Coronavirus - If an employee contracts Coronavirus, then they would be entitled to use their personal (sick) leave during the period that they are not attending work.  If they do not have any personal leave, they can choose to use any accrued annual leave, but you are not under any obligation to pay them for the period that they are at home unwell.  To that extent it is like any other condition. 

3. Employee sent home for reasons beyond the employers’ control - If your employee is sent home because either another person within the workplace has contracted Coronavirus or indeed that employee has had contact with someone who has contracted Coronavirus, or returned from overseas, then they are not entitled to be paid personal leave – because they are not sick.  Whether you choose to pay them some money is a matter for you.  Of course, they are entitled to use their accrued entitlements (i.e. annual leave or LSL) during such period. 

4. What to do with business if an employee within your workplace contracts Coronavirus or has contact with someone who has contracted it - Follow the advice from your State Based Health Department, however, there is a risk of you breaching State Based Work Health and Safety Legislation, if you continue to operate your business. If the advice in those circumstances is shut the business down for a period, then you would have no alternative but to follow that advice and stand your staff down – unless they can work from home.  If the stood down employees cannot perform meaningful work, there is no obligation to pay them.  In these circumstances, employees can use their accrued annual and LSL leave but not personal (sick) leave.

5. Consequences of closing your business apart from where there is a requirement to do so - If you do not have an incident of Coronavirus within your workplace, but you want to choose to close the business as a precautionary measure, you could do so and pay the staff.  However, if you wanted to close the business and not have to pay staff, you would have to establish a basis for that decision, i.e. a recommendation from a health authority or if your business particularly made signs for aged care facilities.

6. Sending employees onto/into third party premises (pt 1) - If the Coronavirus becomes more prevalent, then you must take advice from relevant medical authorities before sending staff into an environment where they may contract it.  You would have to undertake a risk assessment in that regard.  You may, for example, choose to send them to the premises after hours when there is no one else around.  You would also discuss with your customers simple measures that your employees can take to avoid contracting the disease – i.e. principally how to avoid close contact with each other’s staff.  If that means doing work after hours, you may need to price jobs to include penalty rates.

7. Sending employees onto/into third party premises (pt 2) - If you send a staff member into an environment where they are likely to have contact with the public (i.e. a crowded public space), and they refuse to attend because of the risks of contracting Coronavirus, we advise that you consult with them and put in place measures that would mitigate that risk.  If they continue to refuse to attend where there is zero risk, then we invite you to seek advice from us.  Each situation would be different.

8. Reduction in demand for your product – redundancy/reduced working hours – If the economic environment contracts and work tails off you always have the option of making employees redundant (after consultation with them) or negotiating shorter working hours as a compromise.

9. Consequences of school’s closing and the taking of personal leave – Employees who request to take personal leave to care for children who are required to be at home as a result of school closures, will not be entitled to be paid personal leave. This is our current position, based on the fact that the child is not ill, and the school’s closure doesn’t constitute an unexpected emergency (albeit an inconvenience) affecting the child. Should further State and Federal government recommendations be released relating to this matter, we will review this advice.

10. Close-down option for some businesses - As a final option for those members whose businesses are covered by awards with ‘close-down’ clauses, i.e. the Manufacturing and Associated Industries Award, management may want to consider giving notice now for a close down.  That allows you to shut down the business for a specified period. However, the award requires that you give 4 weeks’ notice of the close down.  During that period, employees will use their accrued annual leave/LSL and – if they do not have such leave – there is no obligation to pay them. 

11. Final comments - Ultimately your dealings with your staff in this current environment, are simply an extension of the ongoing obligation that you have in relation to looking after the health and welfare of your employees’ health and safety.   The unusual aspect of the crisis we are all facing is that it may require staff who are not unwell being prevented from attending work and that raises practical questions as outlined above.

We have not provided any advice regarding casual staff as their situation is more flexible.

At any point, we invite you to contact us for advice to navigate the unique circumstances you find yourself in.

Post by Warwick Ryan