- What risks are present where staff are required to attend the workplace because they are unable to work remotely?
- What happens if workers become ill with suspected COVID-19?
- Should remote workers be treated any differently to workers in the workplace in terms of leave?
- Can workers who cannot work from home access personal leave?
- Can expectations be set around working from home and how are they meant to be enforced?
- If expectations aren’t being met by a remote worker, can employment be terminated?
- Can workers work remotely with their children at home?
This week in context:
We have seen:
- a ban on cinemas, nightclubs, casinos, gaming, concert venues, galleries, museums, libraries, swimming pools, clubs, community halls, stadiums, beauty salons, gyms, restaurants and cafes (except takeaway and home delivery)
- the imposition of international travel bans,
- a second-stage $66 billion economic stimulus package,
- enhanced social distance measures, Australians being advised to stay at home unless shopping for essentials travelling to and from work where you cannot work from home,
- commencement of the all-of-nation telehealth strategy
- Queensland closing their state borders
- funerals limited to 10 and weddings to 5
- the Tokyo Olympics postponed
- elective surgeries temporarily suspended
- the creation of new National COVID-19 Coordination Commission (NCCC) to coordinate advice to the Australian Government on actions to anticipate and mitigate the economic and social effects of the pandemic
- Queensland schools allowing only children of essential workers who are not working from home to attend school from 30 March
Business owners and managers are having to make decisions at an incredibly fast pace. Decisions made hastily are going to expose employers to risk. COVID-19 will impact in different ways in different workplaces and there are no simple solutions. Information overload can be crippling. But you are not on your own. We can help you navigate your way through this whether you a business owner or an employee.
This week our clients were asking us questions around:
For those businesses that require their staff to attend the workplace, what risks present and how does the business mitigate that risk? What happens if an employee becomes ill with suspected COVID-19? Does the business have to close and for how long?
- For those businesses where workers cannot work remotely and must attend the physical workplace, there are many challenges.
- Such businesses usually involve working with other people, other staff and also members of the public. Social distancing can be practically impossible even with the best of intentions to comply.
- For these reasons business owners should consider closing the workplace to all except a core of essential workers.
- For those core workers, business owners should at a minimum provide products and facilities such as hand sanitiser, ensuring regular cleaning of the workplace. Monitoring of health websites and WHS regulators is a must.
- Should a worker become ill with suspected COVID-19, you must direct the worker to self-isolate for 14 days, plus provide a list of other workers or clients who they have come into close contact with and direct the workers to self-isolate as well (and recommend to clients).
- Note also the owner has responsibilities to remaining staff and members of the public who have come into contact with this worker, but must be mindful to not breach the ill employee’s privacy. To fully mitigate the risks involved, it is likely the business would need to consider closing its doors at least temporarily, but note its duty of care continues to apply to staff and members of the public who may have been exposed to the ill worker.
- Depending on the size of the workplace, the employer may consider whether to engage an appropriate specialist to consider impact on others.
- The relevant safety regulator may require notification if the situation is a ‘notifiable incident’, which likely includes COVID-19.
Are remote workers treated any differently to workers working in the workplace if they contract COVID-19 in terms of leave? What happens if a family member of the work contracts COVID-19? How long can workers access unpaid sick leave?
- Any worker who contracts COVID-19, whether working in the workplace or remotely, whether permanent or casual, is entitled to take personal leave in accordance with the National Employment Standards (NES) under the Fair Work Act 2009 (Cth).
- If the worker feels well enough to work from home and the owner is happy to accommodate that, then that can occur.
- Workers caring for unwell family members, including those who have contract COVID-19, are entitled to take paid carer’s leave.
- Casual workers are entitled to take unpaid personal leave, or unpaid carer’s leave.
- Workers can access unpaid sick leave for 3 months before protection under unfair dismissal laws arguably cease. However be careful not to fall foul of the general protections that apply, or breach anti-discrimination provisions. This is a complex area and we recommend you seek our advice prior to terminating workers, and similarly if you are a worker whose work has been terminated contact us.
What if not all workers cannot work from home, but some can. Are they able to access personal leave even though they are not working?
- Workers who are not able to work, but who are not sick or caring for a family member, cannot access personal leave.
- Employers can arrange with the worker to take accrued annual leave or long service leave, or working alternative duties or reduced hours. It may also be possible to direct a worker to do so. Special paid leave could also be an option.
Can employers set expectations around working from home and how are these expectations meant to be enforced? If expectations are not met, can the worker’s employment be terminated?
- Most businesses who are able to, have many of their staff already working remotely. Some businesses are working quickly towards this goal.
- Business owners are cautioned to exercise common sense, compassion and understanding, and an acceptance there will be mistakes made as everyone navigates this ‘new normal’.
- Yes it is recommended that employers set expectations, as workplace obligations, including work health & safety, continue to apply to workers who work remotely or at home.
- The time to see your lawyer is before terminating an employee as termination is a very risky endeavour at this time. Businesses are better placed devising strategic solutions rather than defending unlawful dismissal or general protections claims. Invest in policies, systems and sound legal advice.
- If your business doesn’t have in place a work-from-home policy, we can help you with that.
- Workers will work best when they feel connected to their workplace, so set up regular meetings by way of daily zoom or skype or Microsoft teams. Encourage workers to express their concerns and frustrations, and work with them to improve the working environment.
Can workers work remotely with their children at home?
- Just when we thought we had things sorted setting up remote workplaces at home, think again.
- Business owners and remote workers are now bracing for the impact of the imminent closure of schools, and also day care centres.
- Many business owners and workers have parenting responsibilities, and with grand-parents in self-isolation and the count-down to a likely lock-down, there is no one left to hold the baby so-to-speak!
- Yes they can – if the worker considers they can manage it, and the business owner trusts the worker to do the job as best they can, and needs them to keep working for the viability of the business.
- Keep in mind that some workers may prefer to work reduced hours.
- Business owners use your common sense, be reasonable, and accept that productivity may be compromised for a while. Have continuing conversations with your workers, give them options moving forward, trust them – most workers will give their best in trying circumstances, the situation isn’t indefinite. Have rules around remote working, but build flexibility into whatever policy you create.
- Our firm is now operating remotely, many balancing school-aged children at home next week. We will report back tips and tricks in our next Article!
Have questions about our COVID-19 Employment FAST FACTS?
Corney & Lind recommend you keep up to date with government advice and visit the department of health’s website.
If you are a business owner and are unsure as to how to best protect your business or what your responsibilities are in any given situation, please contact our office for further advice. We are offering a special discount for business owners during this time.