Balancing employer obligations while protecting your workplace against the coronavirus

The outbreak of the coronavirus (COVID-19), which has been declared by the World Health Organisation as a Public Health Emergency of International Concern, has affected thousands of people worldwide.

Employers, schools and universities have been required to balance their work, health and safety obligations against their anti-discrimination obligations, particularly in cases where individuals who have recently visited China have been directed not to attend work or school for a considerable period of time.

What is the coronavirus?

The coronavirus (COVID-19) is a respiratory illness caused by a new virus that was first reported in Wuhan, China in December 2019. Symptoms range from mild illness to pneumonia, including fever, flu-like symptoms and shortness of breath. There is currently no treatment.

In Australia, the Australian Government’s Department of Health has advised that those most at risk of contracting the coronavirus are those who have recently been in mainland China or who have been in close contact with someone who is a confirmed case of coronavirus.

As at 18 February 2020, there are 15 confirmed cases of coronavirus in Australia, while there have been approximately 71,434 confirmed cases worldwide.

Employer obligations

In South Australia, employers are required under the Work Health and Safety Act 2012 (SA) to ensure, so far as is reasonably practicable, the health and safety of its workers. Accordingly, where an employer becomes aware that an employee, contractor, volunteer or any staff may have contracted or may be at risk of contracting coronavirus, the employer is required to act without delay.

In complying with this obligation, however, employers must ensure that their safeguards to maintain a safe and healthy workplace are reasonable and necessary and importantly, do not contravene relevant anti-discrimination obligations.

For example, under the Racial Discrimination Act 1975 (Cth), it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

The Australian Government has issued an alert on 18 February 2020 with the following requirements:

• If you have left, or transited through mainland China in the last 14 days, you must isolate yourself for 14 days from the date of leaving mainland China.
• If you have been in close contact with a proven case of coronavirus, you must isolate yourself from 14 days from the date of last contact with the confirmed case.

The Australian Government has also advised that people are not required to isolate themselves if they have only travelled in Hong Kong, Macau or Taiwan.

If employees in your organisation are required to isolate themselves in accordance with the above alert, employers should continue to support their employees throughout this time. For example, we recommend that employers facilitate working from home arrangements, if possible, offer Employee Assistance Program services, or provide options for special leave arrangements. Employers should ensure that their communication with affected employees is clear, in particular, whether leave will be paid or unpaid, to avoid any underpayment of wages claims being brought against the organisation. The employer should also communicate to the employee (and all other staff) delicately to avoid the risk of potential discrimination claims.

While the outbreak of the coronavirus is very serious, employers must still ensure that their communications with employees and any subsequent directions are based on recent travel and contact with persons, not race.

For more information please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au or Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au.