Coronavirus (COVID-19): Employment Fast Facts to frequently asked questions:
- Should employees be working in the office, or working from home?
- What happens if workers choose to self-isolate/quarantine?
- Can workers be directed by their employer to self-isolate/quarantine?
- Can workers be stood down by their employer?
- What happens to their pay?
- Yesterday Australians woke to the news of the international travel ban, Qantas and Jetstar had made the decision to temporarily stand down two-thirds of their employees in the wake of the Coronavirus (COVID-19) pandemic.
- This decision gave a sneak peak at the heavy impact COVID-19 will have on Australian workplaces over the next say 6 plus months.
- These are unprecedented times. There is no one solution for employers as to how to best manage competing and increasing complex demands, but a flexible mindset, appropriate policies and a documentary trail is key to navigating the challenging months ahead.
- Employers are having to make decisions at an incredibly fast pace, but decisions made hastily may expose employers to risk. Contingency plans are being made, scrapped and revisited. COVID-19 will impact in different ways in different workplaces and there are no simple solutions.
Some common questions from our clients are as follows:
Should employees be working in the office, or working from home? What happens if workers choose to self-isolate/quarantine? Can employers set expectations around working from home?
- As recently as less than a week ago, some employers were encouraging workers to work from home. Almost overnight employers are feeling they have little choice but to direct their employees to work from home. With a possible government lockdown looming, it is inevitable that workers will need to be working from home wherever possible. Government subsidies in isolation will not likely keep businesses afloat.
- Workers will increasingly choose to self-isolate or quarantine. Work with them to accommodate them. While it would be nice to have the time to assess each request on a case by case, there’s little or no time to do this due to the fast spread of the virus.
- In Queensland yesterday COVID-19 cases rose 50 in one day to 144. Reporting has numbers increasing long before they plateau.
- Reducing physical contact in order to reduce the spread of infection of COVID-19 is the key message from government.
- Constantly consider new ways of working even if this flexibility is well outside the business’ usual comfort zone. Employers should consider fostering open discussion with their workers as to possible solutions. Remember most business are struggling to come to terms with this new economic climate, with even the most robust ones in trouble (think airlines). Health authorities and governments are telling citizens that time is of the essence.
- It is best practice in the current unprecedented circumstances of a health pandemic for employers to support remote working requests. However some employers may not be able to support requests due to factors such as the nature and size of the business. Some front-line roles this won’t be possible. Consider creative (lawful) solutions – we can help you there. One hopes common sense would prevail.
- Each workplace is different with different needs offering different services. But most workers are sympathetic to their employer’s situation and want their employer’s business to survive the pandemic so they can return to their job.
- If employers were to direct workers to come to work in these circumstances, or threaten workers with serious disciplinary action if they don’t, such direction or threat would likely be considered a breach of the employer’s obligations to the worker under the relevant State health & safety legislation.
- Such actions also expose employers to potential claims for workers’ compensation should the worker subsequently contract COVID-19. This is the subject of another article on our website. In essence, it is likely we will see a spike in workers’ compensation claims from workers claiming to have contracted the virus from work or as a result of work. Consideration will have to be given to the legislation in each state. In Queensland an injury does include a disease contracted in the course of work whether at or away from work, if work is a significant contributing factor to the disease.
- Clear communication to workers about the business’ expectations and impact in an event where is failure follow directive are critical and must be reasonable. But before any decisions are made consider within legal framework, current contracts of employment, legislation and policies and procedures, modern award, enterprise agreement.
- Communication is key, difficult conversations are going to be unavoidable. Decisions should be recorded in writing (email fine) as they are made and as circumstances change.
Can workers be directed by their employer to not attend work? What if a worker contracts COVID-19?
- Employers owe their employees and visitors (clients, contractors) to their workplaces a duty to take care of their health and safety, including (and especially) in a pandemic.
- If a worker or family member has been exposed to or contracted COVID-19, and has come into contact with any other worker, then the workplace will likely be considered unsafe and employers could direct workers to not attend work.
- If a worker contracts COVID-19, then:
- Offer them support, whatever you can afford, a little kindness and compassion goes a long way.
- The worker could make a claim for workers’ compensation.
- Whether or not a claim is made by the worker, there is an obligation on the employer to take immediate measures to protect other workers or visitors who may have had physical contact with that worker.
- However before notifying staff, the employer may need to take into account that ’s right to worker’s privacy, so proceed with caution.
- If a visitor to your business contracts COVID-19, and this follows a worker contracting the virus, it is possible the visitor can make a public liability claim against your business seeking damages for injury caused.
- It may simply not be feasible for employers eg cafes, restaurants, clothing stores (eg wait staff, counter staff, chefs, sales assistants) can’t accommodate working from home for many of their workers. Some might be able to, with some creative thinking
- If your systems can’t support working from home (now or in the immediate future eg. cash is tight), then the employer has other options available.
Can workers be made redundant? Can workers be stood down by their employer?
- Yes for permanent employees, if there is a business downturn due to the COVID-19 pandemic.
- No for casual employees, they are only retained shift to shift. Shifts can be cancelled anytime. There may be access to unpaid leave. The government has announced some financial assistance measures. Business’ can direct their casual employees to these resources
- Clear communication to workers are critical and must be reasonable. But before any decisions are made regarding redundancy or stand downs, business’ must consider decisions within legal framework, current contracts of employment, legislation and policies and procedures, modern award, enterprise agreement. Obligations are imposed in these instruments.
- Before considering a business shut-down for example, look at notice provisions in modern awards/ paid leave in advance if insufficient leave.
- We recommend you speak to us about your actual circumstances before making decisions around redundancy but especially standing down employees. The Fair Work Act provides for where employees can be stood down without pay under the FWA including where the employee can’t be usefully employed. But these apply in very limited circumstances. For example: Breakdown of equipment, industrial action, a stoppage of work that’s beyond employer’s control and employer can’t be held responsible for (eg natural disaster – eg. cyclones, Brisbane floods – it’s yet to be seen whether the COVID-19 pandemic is going to satisfy that definition. A deterioration in business conditions, slow in the supply chain wouldn’t necessarily satisfy the provisions of the Act to allow stand-down.
- The advantage of stand-down is that employers can return to normal when the conditions that affected them begin to change.
- Employers and employers can put their heads together and make other arrangements – eg employees agreeing to take their leave during this time, or leave without pay, knowing this is a temporary situation. Consideration can be given to redeploying staff, consulting them and providing redundancies as set out under the Fair Work Act or industrial instrument.
What happens to workers’ pay?
- When employees are stood down or made redundant their statutory entitlements are still protected.
- Reminder employers must still comply with The Fair Work Act in terms of the redundancy must be a genuine redundancy otherwise they risk exposure to an adverse action claim.
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.