It is not business as usual during this uniquely challenging time for employers. Organisations must simultaneously attempt to maintain business continuity, comply with their occupational health and safety obligations to employees and others in their workplace, and try to navigate their obligations in respect of employee leave and pay during the COVID-19 outbreak.
Leave and pay
At a high level:
– Under the National Employment Standards (NES), if employees become unwell with the coronavirus (or are caring for a member of their immediate family suffering from coronavirus) they are entitled to take personal leave, which includes sick and carers’ leave.
– If employees are not unwell but choose to self-isolate as a safety precaution, they generally will not have an entitlement to take personal leave under the NES – but leave of course may be granted at an employer’s discretion.
– Employees are not entitled to be absent from the workplace during work hours without authorisation and if an employee decides to absent themselves from the workplace without reasonable basis and without the employer’s agreement, this may be a disciplinary issue, or even an abandonment of employment.
– If employers direct their employees to self-isolate as a safety precaution and the employees are not able to work from home, this would generally need to be done on full pay. However, if this is required by governmental order for example, or is otherwise by law then it may constitute a stand down for the purpose of the Fair Work Act and payment may not be required for the period of the stand down.
– Casual employees do not have an entitlement to paid personal leave, however, they are entitled to two days’ unpaid personal leave under the NES.
Complying with OHS Obligations
We suggest employers:
– Investigate options for employees to work from home where possible (see the Ideas section below).
– Ask employees in a high risk category (ie respiratory issues, compromised immunity) to seek medical clearance before continuing to come to work. If they cannot get clearance, they should be asked to work from home and where this is not possible, access personal leave.
– Pay close to attention to all advice issued by the government which can change quite quickly (see Further Information below).
Basic sanitation in the workplace goes without saying but these are some useful ideas for employers concerned about how to best protect their staff:
Working from home
o Have staff work from home where possible.
o Where possible provide laptops or other electronic devices to be used at home updated with security software, or make sure any equipment used poses no data or security risks.
o Trial working from home arrangements as soon as practicable to identify any potential technical/operational issues. Preparatory measures include sending staff home with laptops each evening and ensuring they can access work systems from either company equipment or their home IT equipment.
o Remind employees their confidentiality obligations in respect of their employer’s information continue to apply when working from home.
o Be aware health and safety laws still apply in relation to working from home so it is important to communicate with employees about ensuring their home is a safe place to work and telling them they must report any incidents or near misses.
o It is worth recommending employees contact their insurer to check if they have any notification obligations in respect of working from home or if their contents insurance is affected.
o Conduct virtual meetings on Zoom or the like or postpone non-urgent meetings.
o Where face-to-face meetings are planned, ensure staff ask attendees whether they are unwell or have recently returned from overseas. If the answer to either is yes, the meeting should be cancelled or Zoom used.
o Where staff cannot work from home but have legitimate concerns about commuting to work on public transport, consider offering to cover parking costs.
Splitting workforces and teams
o For businesses in industries that do not allow for working from home (including manufacturing, retail, food and beverage operations etc), consider splitting workforces into two (or more) operationally separate and ‘ring-fenced’ teams.
o Maintain strict physical separation between the teams by:
– rostering teams at different times;
– using different sites/part of a site for each team;
– thoroughly cleaning and sanitising between shifts;
– directing employees not to come into contact with workers in other teams (and to notify the business if this does occur); and
– if a worker in one team becomes ill or is exposed to the virus, his/her team members self-isolate while the other team/s continue working where it is safe to do so.
Temperature testing of staff
o There have been suggestions that infrared forehead thermometers (‘thermometer guns’) are not as reliable as some other types of temperature test but these devices have been employed in some workplaces to detect raised temperatures amongst staff, one possible sign of coronavirus infection.
o While in many cases employee records are exempt from protection under the Commonwealth Privacy Act 1988, employers should be aware that a person’s temperature is classed as sensitive information and should be treated appropriately.
The Fair Work Ombudsman provides useful information about paying employees and employee leave during the coronavirus outbreak: https://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/coronavirus-and-australian-workplace-laws
• Victoria Department of Health – Link to overall guidance.
• Federal Department of Health – Link to overall guidance.