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Employer Obligations During COVID-19: What every employer needs to know about taking care of business

If you're an employer, here's what you need to know about protecting your self, your business and your staff.

The ever-evolving COVID-19 pandemic has dramatically changed the business landscape, and it’s unsurprising that employers have been left asking: “How does my business and workforce respond?” 

Regardless of whether you continued trading (even in a limited capacity), were forced to close, or are now looking to resume operations (in some form or another), it’s important that you understand your workplace obligations and know how to appropriately respond to the changing market conditions. 

We recommend you take the “ABC” approach:

A = Ask the right questions

B = Be prepared for the changes

C = Communicate like crazy

So, what questions should you be asking?

What are my health and safety obligations and how can I meet these?  

Employers have duties under Workplace Heath and Safety, and Occupational Health and Safety laws to:

  • provide information to employees about health and safety in the workplace
  • monitor and maintain a safe working environment (so far as reasonably practicable).

We’ve put together some top tips for employers on how to meet your health and safety obligations.

Top 5 tips for employers

Stay up to date 

Understand the current status of COVID-19, regularly monitor the situation and utilise resources published by the World Health Organisation, the Department of Health and safety regulators in your state or territory.

Be policy ready 

Ensure policies and procedures are up to date and easily accessible by employees. An employer should have an action plan for dealing with COVID-19, including:

  • What happens if an employee is feeling unwell?
  • What resources are required by an employee to work from home (where applicable)?
  • What special precautionary measures are to be taken for employees who attend the workplace?
  • What are the workplace isolation and clearance procedures?

Communicate…a lot

Keep the communication lines open with employees, and encourage them to ask questions and share their concerns. It’s important to foster and maintain a culture of understanding, inclusiveness and respect, and take steps to prevent discrimination and avoid fear in the workplace.

Promote good health and hygiene

Make sure the workplace is regularly cleaned and disinfected (especially shared workspaces and shared equipment), that physical distancing is maintained, that handwashing and hygiene is promoted, that you display signs to employees that remind them and others of the risks and actions they should be taking to stop to spread of COVID-19. 

Remind employees that they must stay home if they are feeling unwell

Make sure that your employees are aware that they must stay home if they are feeling unwell or self-isolate for 14 days if they come into close contact with a confirmed case of COVID-19.

What happens if an employee or their family member is diagnosed with coronavirus?

Full-time and part-time employees are entitled to take paid personal (sick or carer’s) leave. If an employee exhausts their paid personal leave entitlements, an employee:

  • may elect to take unpaid personal leave
  • may elect to take annual leave
  • may apply for long service leave (where eligible); or
  • may take unpaid pandemic leave (explained below).

An employer may also allow an employee to take leave without pay or paid special leave.

If your employee is not diagnosed with Coronavirus, but is caring for someone who is, you should also consider allowing the employee to work from home (if available for your type of business).

An employer is entitled to request evidence of the illness or unexpected emergency. The type of evidence requested must always be reasonable in the circumstances. An employee who does not give their employer evidence where requested may not be entitled to be paid for their sick leave or carer’s leave.

On 8 April 2020, Fair Work made determinations to vary 99 modern awards by inserting a temporary provision to allow employees to take 2 weeks of unpaid pandemic leave if they are prevented from working:

  • as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner; or
  • by measures taken by government or medical authorities in response to the pandemic.

This leave is available to all full-time, part-time and casual employees with immediate effect, meaning, they do not need to accrue this leave.

What happens if an employee is required to care for a family member where there is no coronavirus infection?

Full-time and part-time employees are entitled to take personal (carer’s) leave for unexpected emergencies. If an employee exhausts their paid personal leave entitlements, an employee may:

  • elect to take unpaid personal leave
  • elect to take annual leave
  • apply for long service leave (where eligible).

An employer may also allow an employee to take leave without pay or paid special leave.

However, you should consider allowing the employee to work from home (if available for your type of business).

Casual employees are entitled to take 2 days of unpaid carer’s leave; although, it’s important to note that a casual employee does not have to commit to all work they may be offered.

What happens if an employee is still stuck overseas, is required to be self-isolated due to travel or from coming into contact with a known COVID-19 case?

You should consider allowing the employee to work abroad (if they are adequately resourced to do so) or work from home (if available for your type of business).

Aside from the provision of unpaid pandemic leave in certain modern awards (as outlined above), the Fair Work Act 2009 (Cth) does not provide for this specific situation so employers will need to come to a fair agreement with their employee. This may include:

  • if the employee is not cleared by a doctor to work, the employee taking personal leave
  • the employee taking annual leave
  • the employee taking long service leave (where eligible)
  • arranging any other paid or unpaid leave by agreement.

What happens if an employee wants to stay home as a precaution?

You should consider allowing the employee to work from home (if available for your type of business). Alternatively, the employee may exercise their right to take paid or unpaid leave. However, not all leave has to be approved by an employer. For example, a request for annual leave can be refused where reasonable.

This is why communication is key. If an employee wants to stay home as a precaution or is too scared to come into work (and a suitable alternative arrangement is not arrived at), you should engage further with the employee to understand if their concerns are legitimate and what steps you can take to assist the situation.

If the employee’s concerns are not legitimate, an employer can direct an employee to attend work or perform other duties in the ordinary course of their work where reasonably lawful and not exposing the employee to risk.

Can An Employer Require An Employee To Download COVIDSafe?

The short answer, no.

The long answer:

Section 94H of the Privacy Amendment (Public Health Contact Information) Act provides that a person commits an offence if they require another person to:

  • download COVIDSafe to a communication device
  • have COVIDSafe in operation on a communication device; or
  • consent to uploading COVIDSafe app data from a communication device to the National COVIDSafe Data Store.

The section further deals with work-related issues around COVIDSafe, making it an offence for a person to:

  • refuse to enter into or continue a contractual arrangement with that other person (including a contract of employment)
  • taking adverse action (within the meaning of the Fair Work Act 2009) against that person
  • refuse to allow that person to enter premises (that are available to the public or they have a right to enter)
  • refuse to allow the person to participate in any activity
  • refuse to receiving goods or services from that person; or
  • refuse to provide goods or services to that other person.

What happens if the employer needs to scale back operations, reduce hours, stand down employees, or close?

There is no one-size-fits-all answer to this question.

If the employer needs to scale down their operations, consideration needs to be given to the appropriateness of (amongst other things):

  • freezing new hires
  • deferring salary increases or bonuses
  • changing rosters
  • requesting employees take leave.

If you are participating in the JobKeeper Scheme, you are temporarily authorised to:

  • give a stand-down direction to an employee to work fewer days or hours (including nil) where the employee cannot be usefully employee for their ordinary days or hours because of a business change attributable to the COVID-19 pandemic or government initiatives to slow down COVID-19 transmission, provided that the direction is reasonable
  • give a direction to employees to change their work duties (where the duties are within their skill and competency) or perform duties at a place different from their normal place of work (including the employee’s home), provided that the direction is reasonable
  • request an employee to work different days or hours, which cannot be unreasonably refused by the employee, provided it is safe and does not reduce the employee’s number of hours compared to their ordinary hours of work
  • request an employee take annual leave, which cannot be unreasonably refused by the employee, provided it does not result in reducing the employee’s leave balance to less than 2 weeks. You can also genuinely agree with your employee to take their annual leave at half pay.

Redundancies should only be considered as a last resort. Where a business is in a position to temporarily redeploy staff, utilise their skills in other capacities, or make arrangements with employees to take leave (paid or unpaid as applicable), then this should be the first point of call.

What’s next for employers?

What does all this mean? Employers need to be vigilant and understand their obligations under the Fair Work Act (including the temporary JobKeeper amendments in Part 6-4C) and relevant employment agreements, industrial instruments and policies. Employers are encouraged to obtain advice on their specific circumstances before implementing any changes.

We are here to help you implement your ABC’s approach. If you would like assistance in understanding your rights and obligations, feel free to get in touch with BlueRock Law to speak with our experts.

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