COVID-19 and the Private Sector Workforce

On 26 February 2020, we advised readers on how to balance employer obligations while protecting the workplace against COVID-19 or Coronavirus. Since our previous alert, there have been significant updates in respect of COVID-19 globally and within Australia.

The Australian Government’s Department of Health (the Government) is the primary source of information for updates regarding COVID-19. The situation is changing rapidly and it is important that the entire Local Government sector stays up to date with the latest and most accurate information about COVID-19. As at 15 March 2020, the Government has advised all Australians to reconsider their need for overseas travel at this time. Further, all persons travelling or returning to Australia must now (as at 17 March 2020) self isolate for 14 days.

During these times of uncertainty, organisations must have a plan for business continuity while at the same time supporting all members of their workforce. We now provide a number of general observations which may hopefully provide some assistance to human resources professionals in navigating what lies ahead. Employers will need to make decisions based upon their particular circumstances, and accordingly decisions may differ from organisation to organisation.

Whatever decisions are made, it is important that each employer has a clear position which is communicated and applied consistently throughout the workforce.

Work Health and Safety

As a starting point, we note that any communications and directions to staff relating to COVID-19 should be framed in the terms of a work health and safety issue. Not only do employers have obligations under the Work Health and Safety Act 2012 (WHS Act) to ensure the health and safety of their workers and other persons, workers themselves (as well as other persons such as visitors and independent contractors) have obligations to take reasonable care for their own health and safety and that of other persons.

Further, workers (as well as other persons such as visitors and independent contractors) are required under the WHS Act to comply with any reasonable instruction given by their employers which relates to compliance with the WHS Act. It is therefore important that instructions are framed as work health and safety matters.

To assist in preventing the spread of COVID-19, employers should communicate to all employees and independent contractors the latest Government advice regarding hygiene, social distancing and self-isolation. Employers should direct that all workers (and, to the extent possible, all other persons who may visit the organisation’s premises) comply with that advice.

Working from home

In accordance with current Government advice, persons should not attend your organisation’s premises if:

• they are feeling unwell and have any of the COVID-19 virus symptoms;
• they have returned from overseas and have not yet self-isolated for 14 days; and/or
• they have been in close contact with a confirmed case of COVID-19.

If a person must remain away from work for the purpose of being tested for COVID-19 or they are in mandatory self-isolation, then before placing this person on ‘leave’ of any type, it is worth considering whether that person can work from home (unless they are actually sick, in which case they should not work from home).

Indeed, employers may choose to direct a person to work from home even if that person is not being tested or in isolation, as a proactive, precautionary measure. When and the extent to which a person should work from home is of course a matter which will differ from organisation to organisation and from worker to worker. Employers should be aware that their obligations to employees in terms of work, health and safety and workers compensation still apply in circumstances where employees are working from home.

Leave options

If working from home is impractical, employers and workers of course have a range of paid and unpaid leave options at their disposal to manage absences relating to COVID-19.

Strictly, sick leave only needs to be paid when a person is sick. However, it is open to employers to allow persons to access sick leave during testing and self-isolation even if, ultimately, they are not sick. This is a matter of discretion for each organisation.

Aside from sick leave, employers and workers can also use annual leave, long service leave, and unpaid leave to manage absences. Another tool at the disposal of employers and workers is a direction to stay home, on full pay (akin to ‘gardening leave’).

Importantly, organisations should have a clear position on what leave options are available in what circumstances. This position should be communicated and applied fairly and consistently among workers. Individual circumstances of affected workers should also be considered; advice can be sought in any difficult or unusual cases.

Stand down

A ‘stand down’ is a direction to stay home, without pay.

There are stand down provisions in the Fair Work Act 2009 (Cth) (the FW Act), and in some enterprise agreements. The default position in the FW Act is that employers have the option to stand down an employee during a period in which the employee cannot usefully be employed because of, among other things, a stoppage of work for any cause for which the employer cannot reasonably be held responsible. If mandatory isolation or social distancing results in work stoppages, employers may wish to consider relying on this provision in the FW Act. In such circumstances, employers are not required to make payments to employees during periods of stand down.

If considering this option, please seek advice.

Next steps

Clearly, Government advice regarding COVID-19 continues to evolve rapidly, and the practical workplace impacts arising from testing, isolation and illnesses will likely increase. However, even as disruption increases, business continuity must still be maintained. In such cases, employers should develop a protocol for maintaining their core services and communicating with key stakeholders in light of the COVID-19 developments.

If you require specific advice regarding the impacts of COVID-19 on your organisation, please do not hesitate to contact us. We recommend that Chief Executive Officers, Boards and Human Resources officers keep up to date with the latest medical advice and official reports from the Government, which can be found at www.health.gov.au.

For more information please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au or Chris Alexandrides on +61 8 8210 1299 or calexandrides@normans.com.au.