During these challenging and ever changing times, it is important that employers and employees work together to find appropriate solutions that suit the needs of their workplace environment. This may include taking different forms of leave, working from home or taking extra precautions in the workplace.
Following are some tips that Sphere hope will shed some light for both employers and employees.
What happens if an employee or their family member is sick with coronavirus?
Employees who are sick with the coronavirus should not attend their workplace for a period of time due to the workplace health and safety legal obligations. Employers and employees should be familiar with their obligations.
Employers can direct employees who are sick with the coronavirus not to come to work and to get medical clearance from a doctor before returning to work.
Employers can do this if they’re acting reasonably and based on factual information about health and safety risks, which includes relying on the Australian Government’s health and quarantine guidelines.##
Full-time and part-time employees who cannot come to work because they are sick with coronavirus, can take paid sick leave.
If an employee needs to look after a family member or a member of their household who is sick with coronavirus, or suffering an unexpected emergency, they are entitled to take paid carer’s leave. An employer cannot require an employee to take sick or carer’s leave. However, in these circumstances the employee is not entitled to be paid unless they use their paid leave entitlements.
Under the Fair Work Act, casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full-time and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left. Employers should consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
An employee must give their employer evidence of the illness or unexpected emergency if their employer asks for it. This will also apply to situations relating to coronavirus.
Under the Fair Work Act, an employee is protected from being dismissed because of their temporary absence due to illness or injury.
What if an employee is stuck overseas or is required to be quarantined or to self-isolate?
Employees should contact their employer immediately if they are unable to attend work because
- they cannot return from overseas,
- are required to enter quarantine or
- to self-isolate because of the coronavirus.
The Fair Work Act does not have specific rules for these kinds of situations so employees and employers need to come to their own arrangement.
This may include:
- working from home or another location (if this is a practical option),again, you should review any applicable enterprise agreement, award, employment contracts or workplace policies
- taking sick leave if the employee is sick
- taking annual leave
- taking any other leave available to them (such as long service leave or any other leave available under an award, enterprise agreement or employment contract)
- arranging any other paid or unpaid leave by agreement between the employee and the employer.
Where an employer directs a full-time or part-time employee to stay home in line with advice, (for example in line with the Australian Government’s health and quarantine advice, and the employee is not sick with coronavirus), the employee should ordinarily be paid while the direction applies. Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
If an employee cannot work due to travel restrictions (for example, they are stuck overseas), they are not entitled to be paid (unless they use paid leave entitlements). Again, employers should consider whether their obligations are impacted under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
What if an employee wants to stay home as a precaution?
Employees who want to stay at home as a precaution need to come to an arrangement with their employer that best suits their workplace, such as making a request to work from home (if this is a practical option) or to take some form of paid or unpaid leave, such as annual leave or long service leave.
Normal leave application processes in the workplace apply. If the employee does not enter into an arrangement with their employer or use paid leave, they are not entitled to payment in these circumstances.
Employees are encouraged to discuss their level of risk of contracting coronavirus with their doctor, workplace health and safety representative or the appropriate Commonwealth, State or Territory workplace health and safety body.
Employees who do not work because they have a reasonable concern about an imminent risk to their health or safety are not taking industrial action. This is provided they are not failing to comply with a direction to perform other appropriate and safe work.
What if an employer wants their employees to stay home as a precaution?
Under workplace health and safety laws, employers must ensure the health and safety of their workers and others at the workplace as far as is reasonably practicable. Workers also have responsibilities under those laws.
If an employee is at risk of infection from coronavirus (for example, because they’ve recently travelled through mainland China, Iran, the Republic of Korea or Italy, or have been in close contact with someone who has the virus), employers should request that they seek medical clearance from a doctor and work from home (if this is a practical option – see below), or not work during the risk period. Employees can be directed to obtain medical clearance, which may include being tested for coronavirus, provided this is reasonable and based on factual information about health and safety risks.
Where an employer directs a full-time or part-time employee not to work due to workplace health and safety risks but the employee is ready, willing and able to work, the employee is generally entitled to be paid while the direction applies. Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of equipment break down, industrial action or a stoppage of work for which the employer cannot be held responsible. The most common scenarios are severe and inclement weather or natural disasters.
Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has the coronavirus. Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay. Employers are not required to make payments to employees for the period of a stand down, but may choose to pay their employees.
Employers need to balance their legal obligations, including those relating to anti-discrimination.
What about casual employees and independent contractors?
Casual employees do not have paid sick or carer’s leave entitlements under the National Employment Standards and usually are not entitled to be paid when they do not work (for example, if they miss a shift because they are sick due to coronavirus or because they are otherwise required to self-isolate). Casual employees are paid a casual loading instead of paid leave entitlements. Employers Independent contractors are not employees and do not have paid leave entitlements under the Fair Work Act. However, there are special provisions that deem contract outworkers in the textile, clothing and footwear industry to be employees for the purposes of most protections under the Fair Work Act. Where these provisions apply, the contract outworker should be treated as an employee.
What if I need to let employees go or reduce their working hours?
Some employers may need to make employees’ positions redundant in response to a business downturn. If an employee’s job is made redundant their employer may have to give them redundancy pay. The Fair Work Act has requirements that employers have to meet before they can terminate an employee’s employment, such as providing notice.
If an employer seeks to vary employees’ work rosters, they should review any applicable enterprise agreement, award, employment contracts or workplace policies. Particularly for full-time and part-time employees, an employer is usually required to seek employees’ agreement to change their rosters.
Under the Fair Work Act, an employee is protected from being dismissed because of a temporary absence due to illness or injury. The Fair Work Act also includes protections against being dismissed because of discrimination, a reason that is harsh, unjust or unreasonable or another protected right. These protections continue to operate in relation to employees impacted by coronavirus
Can employees be directed not to travel?
Employers can direct employees not to undertake work-related travel if this is necessary to meet workplace health and safety obligations or is otherwise a lawful and reasonable direction.
Employers are unlikely to be able to direct an employee not to undertake private travel.
We hope the above information is of help to those clients with staff and it is advisable that at all times, Employers should also consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
If you have any other queries, please contact Sphere on (03) 8899 6399
##For more information on Quarantine requirements visit the Australian Government’s Department of Health’s website https://www.health.gov.au