As this dreadful virus continues to escalate and cause devastation all over the world, is it important we understand what we can do to reduce its further impact.
From midday Monday, 23 March 2020, the Morrison Government implemented mandatory lockdowns in an effort to enforce social distancing resulting in the closure of restaurants, cafes, pubs, gyms and alike. Such lockdowns have been further updated to include food courts, extended family gatherings, real estate auctions and inspections as of midnight Wednesday, 25 March 2020.
Unfortunately, this means that thousands of Australians will lose their jobs, and employers will need to ensure that their obligations are met when effecting these terminations.
Given the uncertainty surrounding these radical laws, we understand that many of our clients have a variety of employment law related questions and issues.
As such, we have collated a short Q&A guide of 10 common queries.
This newsletter will form part of a series, and we will release further information and guidance for employers progressively and in time with both the Victorian and Australian governments’ directions.
Whilst all care has been afforded to ensure the accuracy of this information, it is important to consider the facts and circumstances of each matter. Our team of experienced Workplace Relations lawyers are available to discuss any of these matters with you, as well as other employment law related questions.
Lastly, before moving to terminate an employee, it is good workplace relations practice to consult with the employee first as the employment relationship is essential to ensuring survival during these troubling times.
How Do I Treat Employees if I Need to Temporarily Close Part of or All of My Business?
Under the stand down provisions of the Fair Work Act 2009 (Cth) (FWA), you are entitled to stand down an employee who you cannot usefully employ in circumstances where you close your business in circumstances beyond your control, and the stand down is due to that stoppage of work. However, prior to doing so, we recommend you attempt to redeploy the employee to a different position.
In circumstances where this is impossible, a stand down is permissible as the closure is a direction from government and thus outside your control.
Regarding pay, standing down an employee generally means that their leave period is unpaid. The period of leave does not break their continuity of service, and the period counts towards accrual of leave. Accordingly, they may access annual leave or long service leave for this period instead.
If I Need to Reduce a Permanent Employee’s Wages or Hours, How Do I Do This Properly?
First and foremost, do not force an employee to reduce their wage or hours of work. If you do, you may be liable for breach of contract, or you may make your employee redundant.
Alternatively, you should first consult your employee and discuss changes to their employment contract. When (and if) you reach agreement, you should put this in writing to be signed by you and the employee to acknowledge the new arrangement, and to avoid future disputes.
My Employee Is Worried That They Will Contract Covid-19 and Is Not Presenting to Work. What Can I Do?
Unless directed by government, all employees should attend for work.
However, if an employee refuses to do so, you are not obliged to pay them for their period of absence. Additionally, you are not obliged to give them access to any accrued and unused leave. However, you may do so at your discretion.
In circumstances where an absence would be problematic to your business, you may put in place an alternative arrangement with the employee, such as working from home or altering their hours of work so they avoid exposure during peak hour.
We recommend exercising caution where disciplinary steps are to be implemented. Whilst you may discipline an employee who refuses to follow a lawful direction, your employee’s concern may be construed as a workplace health and safety issue, thereby exposing you to various causes of action.
As an employer, you have a statutory obligation to provide a safe and healthy workplace for all employees. Additionally, your employee may be protected under the general protections provisions of the Fair Work Act 2009 (Cth), as well as Occupational Health and Safety, and discrimination legislation.
My Employee Has Come Into Contact With a Confirmed Case of Covid-19 or Has Recently Returned From Overseas. Do I Treat the Period of Leave for Self-quarantine as Paid or Unpaid Leave?
If your employee has access to paid leave (such as annual leave or long service leave), it is best practice to recommend it is used during the period of self-quarantine. However, if they do not have sufficient paid leave, it is at your discretion to permit the use of paid leave in advance of its accrual. Alternatively, they may use this period as unpaid leave.
Another option is to allow your employee access any available personal leave. However, strictly speaking as your employee is not unwell, you are not obliged to allow this. This is of course subject to any symptoms developing during the period of self-quarantine. Clearly, your employee would be entitled to access their personal leave if they do become ill, whether the illness is COVID-19 or otherwise.
An Employee Has Consulted a G.p Who Has Cleared Them of Covid-19. Should I Request They Provide a Medical Certificate or Similar as Evidence of Their Fitness to Work?
This is a grey area.
Whilst it is prudent to ensure you provide a safe and without risk workplace, you are not able to force your employee to be tested for COVID-19 where they present with flu-like symptoms. However, it is vital that you direct them to not attend the workplace, and you may suggest they obtain a medical certificate or similar prior to returning to work.
In these circumstances, you should pay your employee during this absence as paid personal leave. For example, you should pay your employee for a reasonable period in which it requires them to obtain clearance, such as 2 to 4 days. Where this leave option is exhausted, you may permit they access another form of paid leave.
In addition, it is recommended that you focus on supplying sufficient hand sanitiser and similar products, encouraging social distancing and implementing working from home policies if possible.
It is also important to think of ways that you can structure your workplace to deal with the pandemic. It is predicted that the pandemic will last another four to six months, so it is integral that sustainable practices are implemented in workplaces.
An Employee Is Displaying Mild Symptoms. What Should I Do?
As canvassed in question 5, it is prudent to direct the employee to refrain from attending the workplace, and seek medical attention and clearance before they return.
If the employee disputes your decision claiming they are well, you should inform the employee of the risks of COVID-19, and explain that your decision is supported by government direction.
Depending on the circumstances, we suggest the employee be paid during the period it takes them to obtain medical clearance. However, if they are unable to obtain such clearance, they should have personal leave available to them.
What Are My Obligations to Employees Regarding Their Privacy if They Contract Covid-19?
As noted above, the employment relationship is essential to ensuring survival during these troubling times. It is very important that privacy principles are considered and dealt with practically. Additionally, you do not want to be exposed to liability under privacy and/or health legislation.
The Privacy Act 1988 (Cth) and the Health Records Act 2012 (Vic) (Acts) regulate how employers must handle their employees’ health information in Victoria.
You may request and disclose such information in circumstances where:
- You reasonably believe the disclosure is necessary to prevent a serious threat to an individual’s health, safety or life; or
- The information collected is used by you for the purpose for which it was collected. For example, you inform employees that you are collecting their health information for the purposes of disclosing the identities of affected employees to their colleagues.
Practically speaking, if an employee does contract COVID-19 such disclosure may be necessary from a workplace health and safety perspective. However, you should seek legal advice because the circumstances of the proposed disclosure may vary depending on the individual facts.
My Business Is Not Directly Affected by the New Lockdown Laws. Is There Anything I Should Be Doing for My Employees?
As matters progress each day, it is important to keep your employees informed as much as possible. This means staying up to date with government directions and communicating key details. However, be sure to tailor the circulated information as you do not want to panic your employees – it is a balancing act!
It is also integral that you keep your employees updated as to their own health and wellbeing. This may include weekly reminders of access to the Employee Assistance Program or external counselling services.
For those in positions of leadership, it is vital to remain compassionate, flexible where possible, and understanding of all circumstances your colleagues may face. Transparency is also essential, particularly where difficult conversations are necessary. The way employers interact with employees during this time will influence your business’ culture so it is important to consider what tools and strategies you put in place to maintain your relationship with employees.
Contingency plans are also recommended, being prepared on a “staged basis”. For example, level 1 may be implemented where the risk is low and make increase to level 3 where the risk is high, and employees are directed to work from home. This enables you to plan ahead and have appropriate courses of action in place if events progress. It is also recommended that you review these stages as new information develops to ensure they remain practical.
What Leave Should My Employees Use if They Need to Stay Home to Care for Their Young Child/children if Their School Has Closed?
If this is applicable, permanent employees may opt to use any accrued and unused personal or carer’s leave. Whilst the employee is not sick per se, the purpose of personal leave or carer’s leave is permissible where the care is required in an unforeseen emergency.
Alternatively, where the employee has older children who are self-sufficient, it may be suitable to discuss using personal leave.
For casual employees, they may use unpaid carer’s leave.
What Are My Obligations to Casual Employees?
Given the nature of their employment, you are under no obligation to pay a casual employee.
To avoid the financial impact upon these employees, the government is providing welfare payments to eligible employees.
Additionally, the government is waiving the wait period of one week sickness allowance for casuals.
Alternatively, you may choose to allow some employees the option of paid leave temporarily to avoid financial difficulty.
Whilst all care has been used in preparing this information. each case will need to be considered on its own individual facts and circumstances. Please do not hesitate to contact us.
Before seeking to implement or take unilateral action, it is always good workplace relations practice to consult with employees as a good employer/employee relationship is invaluable in any workplace, especially in these troubling times.