Today, many organisations are shutting down. Today, many organisations do not know whether they will reopen. Sadly, employment lawyers cannot look into a crystal ball and tell our clients the direction this concerning event is headed. However, we can certainly assist when it comes to advising our clients on what the law may allow during this difficult period of time.

We imagine there are a number of considerations for businesses at this time – must we shut down completely in accordance with Government instructions? If we must shut down, can work be performed by our employees at home? Is it possible to remain open but with limitations? At what risk are we placing our employees by doing so? What if we are faced with the worst-case scenario of needing to make redundancies?

Your Primary Concern Right Now – Health and Safety

In this article, we outline some of the considerations needing to be taken into account when it comes to employees and their entitlements at this stage. Before we do so, we must outline the following:

  1. Your legal obligation as an employer is to ensure, as far as reasonably practicable, the health and safety of (a) your workers (being your employees, contractors and volunteers) and (b) any third parties exposed to your business operations (clients, customers, patrons or other bystanders).
  2. This should be your primary consideration. Criminal penalties apply for breach of those obligations. Civil liabilities might also arise to your workers and third parties who are infected (or those who suffer damage or loss) arising from your failure to take reasonable care to prevent the risk of infection.

How Can I Achieve This?

We advise that you can meet the legal obligations above by doing the following:

  1. Follow Government advice and restrictions, and ensure you remain up to date with this information;
  2. Require all persons within your workplace and in your surrounds to maintain appropriate levels of hygiene;
  3. Require appropriate levels of social distancing – not only with respect to your workplace (if you remain open) but also ensure the isolation of people with infection or suspected infection); and
  4. Act immediately where there is concern that a medical response to infections and suspected cases is required.

You can achieve the above through good communication, an empathetic approach to managing your employees, and to adapt to an ever-changing environment that is impacting so many people, whether its medically, socially or economically.

Can I “stand down” my employees without pay?

You can only “stand down” your employees without pay where they cannot be usefully employed due to reasons outside the control of the employer. We advise clients that before you make this decision, you obtain advice from your employment specialist as an employer must be sure that they have also abided by terms of their industrial instruments such as awards or enterprise agreements.

However, employers may wish to avoid “standing down” their employees by considering alternative arrangements to mitigate financial loss to the employee such as allowing the employee to work from home (if possible) or utilise their accrued paid leave entitlements (annual leave or long service leave, if a permanent employee).

It is a matter of discretion for employers to provide paid leave in the circumstances, however we strongly recommend that employers allow employees to access their paid leave where possible.

However, if your only option is to “stand down” employees, we advise that COVID-19 is likely to be described as an event which is entirely out of the control of the employer.

Can I compel workers to “self-quarantine”?

If you have decided that all employees must self-quarantine and that decision has been made beyond the government recommendations, an employer may request the employee take unpaid leave (or utilise accrued paid leave such as annual leave or long service leave), but an employer cannot compel the employee to do so. If an employee chooses not to “self-quarantine” and the Government has not demanded that employees do so, then the employer is required to that person to stay at home, or work from home.

What if I am concerned that one of my employees is sick?

If an employer notices, or becomes concerned that, an employee is displaying symptoms of a cold, an employee send the employee home. To meet its workplace health and safety obligations, an employer is within its rights to send that employee home and require them to take their personal leave. You can (under your general obligations to ensure workplace safety) send the employee home and request them to take paid personal leave. However, this is not a blanket authorisation to send anyone home the minute they display a sniffle. The employer must have reasonable belief that the employee is unwell, and instances of uncertainty, an employer is required to pay that employee until they seek medical attention and obtain medical clearance.

Personal leave can be taken where the employee is unwell, or they are required to care for someone in the household, or an immediate family member. However, this entitlement is not available in circumstances where there is no illness present (whether it be that employee or family member). Under Australian workplace relations legislation, personal leave is an entitlement available to employees upon evidence where genuine illness is being experienced.

What if an employee refuses to attend work because of the risk of COVID-19?

If an employee refuses to attend work (or perform certain duties) as a precaution against being exposed to coronavirus, unless the employee is acting in accordance with government advice to do so, the employer does not have to pay them or allow them to access leave. It would be the expectation that the employee not attend work, and essentially be on “unpaid leave”.

Where it is clear that there is a risk of infection in the workplace, the employer is expected to consider alternative work arrangements such as working from home, arranging private transport for employees who take public transport or implement other hygiene protocols.

In some circumstances, where an employee is refusing to attend work and there is no reason to believe there is a risk of infection, an employee may be subject to disciplinary action. However, we caution employers in taking this action. Given the widespread issues of COVID-19 at this time, and given the Government recommendations, it may be argued that demanding they come to work is a direction that is lawful and reasonable and does not put the employee at any risk.

Making a wrong decision in this regard places employers at risk of breaching provisions within employment, discrimination, and safety legislation.

Can I force my employees to take their annual or long service leave?

At this point in time, the most appropriate leave entitlement available is annual or long serve leave. They are forms of paid leave that can be utilised, whether it be through paying them whilst being away from the workplace or, if leave is limited, through part-payment should you need to reduce their hours.

Generally, the taking of leave should be mutually agreed between the employer and employee. However, in current circumstances it may be necessary to proactively encourage employees to take paid leave.

Where there is no annual or long service leave available to the employee, a business may wish to consider making special payments, however in the current economic climate, this simply may not be possible.

Where there is no leave available, an employer must make a decision the require their employees to take leave without pay.

What if I have casual employees? What if I have independent contractors?

Workers may be able to access government welfare payments. The government has recently announced that they will waive the one week wait period for access to sickness allowance for casuals and contractors (but not sole contractors) and over the past few days, have announced that it has doubled to allowance for anyone who is considered a “jobseeker” (ie. Newstart).

As difficult as it is for casuals and independent contractors, there is no requirement to pay casual employees or contractors. Some employers are choosing to provide some paid leave for short periods to assist these workers financially however in the current economic client, this may not be a viable option for businesses.

What other steps do I need to take right now?

This is a rapidly changing situation. Our best advice is as follows:

  1. Keep the communication lines open with your employees;
  2. Do not overwhelm them, but ensure that you give them regular updates and allow them access to practical information;
  3. Where possible, provide your employees with personal protective equipment, disinfectants or sanitisers;
  4. Exhibit leadership, compassion, understanding and relative calm. Acknowledge that a number of your employees will have concerns about their health and well being as well as their financial circumstances; and
  5. Stay up to date with federal and state authority announcements and be prepared to act on any advice, guidance or mandatory directions given.

We are here to help you through this difficult time. We are staying as up to date as possible with the ever-changing situation and we will do our best to ensure that your business functions as effectively and as efficiently as possible.

Please continue to check our website and Facebook account for regularly updates.

Prepared by Kathryn Adams and Bianca Muller, Hallett Law Barossa.