COVID-19 will cause significant disruption to your workforce, if it hasn’t already, and we have over the last few weeks been regularly speaking with many of you about particular challenges that are arising as the situation progresses.
Managing the increasing levels of public anxiety alone requires strong leadership and clear messaging to maintain stability in your workforce. Where possible, and subject to government intervention, we recommend that you take reasonably practicable steps to minimise the risks and otherwise endeavour to keep calm and carry on!
We have pulled together the below to cover some of the most frequently asked questions and scenarios which have been raised with us in relation to the COVID-19 pandemic, and hope it assists those who may not yet have had to implement these interventions.
Q: What should we be doing right now?
If you haven’t already, you should develop a policy on how your organisation will be addressing COVID-19 and seek to actively communicate that to your employees. For modern award or enterprise agreement covered workforces, this will necessarily involve consultation in accordance with those instruments – and it is best to get on the front foot with that as soon as you can.
Policies should consider topics such as the steps that are being taken within the workplace to minimise risk (e.g. requiring desks to be cleared each evening to maximise cleaning, provision of anti-bacterial soap and hand sanitiser and any restrictions on travel or contact with customers, where possible) and requirements for reporting suspected cases or self-isolation.
We also recommend that your policy provides an internal point(s) of contact and clear guidance for those employees who may be concerned about their own individual exposure (due to factors such as their age or pre-existing medical conditions) and/or how they will manage the changing circumstances (due to the need for flexible work arrangements in the the case of school closures or to support self-isolating family members) so that there is a coordinated response and approach to these issues, which may include accessing paid leave or working from home.
Employees should also be directed to report either to their manager or the point of contact any planned travel overseas, exposure to potentially impacted people or flu-like symptoms so that we can take reasonably practicable steps, as required by occupational health and safety legislation, to ensure their health and safety and that of others in their workplace.
Q: How do I handle an employee who has returned from overseas and is in mandatory 14-day isolation?
If an employee is required to self-isolate as a result of having travelled overseas or having been in contact with an exposed person then we recommend considering whether that person can work from home (and still perform the inherent requirements of their role). If working from home is available and agreed, a safety risk-assessment needs to be conducted for their home workplace (again so that we can demonstrate we have met that basic duty of taking reasonably practicable steps). Given the rapidly escalating environment, a self-assessment checklist and telephone discussion with a line manager of any areas of concern and measures to mitigate risk is an appropriate approach.
If working from home is not available, then the employee will need to take leave for the absence as they are effectively unable to perform the inherent requirements of their job and attend the workplace. You may, and some employers have, considered providing some special paid leave in this circumstance but this is by no means required. Employees could otherwise access accrued annual or long service leave entitlements or of course personal leave if they are sick or need to care for a family or household member who is. For employees without paid leave entitlements (including casual employees) the absence would otherwise be unpaid.
Q: We have employees who wish to ‘proactively’ self-isolate for their own protection, even where they do not meet any of the criteria which would require them to self-isolate. Do they have to take leave?
If an employee wishes to self-isolate as their own precautionary measure (perhaps because they are in a ‘higher risk’ category of the population) and this cannot be accommodated by the employee working from home or taking a paid leave entitlement then, similarly to the above, the employee’s absence would be unpaid.
Fundamentally, if an employee is refusing to attend work in circumstances where there is no reasonable basis for them to have a concern that there is an imminent risk to their own health and safety, that employee is on an unauthorised absence (and arguably participating in unlawful industrial action) and could be managed accordingly. This is one scenario where you would want to carefully consider employee engagement and public relations implications before taking any such action, however, and ideally actively work with the employee to alleviate their concerns or enable leave to be taken.
Q: COVID-19 has had a significantly detrimental impact on our revenue. Can we:
Stand people down without pay under s.524 of the Fair Work Act 2009?
If your business is experiencing what is essentially a slackness in trade caused by COVID-19 (for example if you are in the hospitality or retail sector and experiencing a decline in customer demand) we unfortunately do not consider this to be a scenario where the stand down provisions of the Fair Work Act 2009 would come into play.
Rather, alternative measures such as reducing (to zero if necessary) the engagement of casual employees, discussing and agreeing with permanent employees arrangements for them to take paid or unpaid leave and, if it comes to it, redundancies are the appropriate actions here.
Direct people to take leave?
The capacity to direct employees to take paid annual leave will be dependent upon the modern award or enterprise agreement that applies to those employees or, where there is none, the provisions of the Fair Work Act 2009. Long service leave directions will also ordinarily be impacted by the long service leave legislation in the State or Territory in which the employee works.
While there are likely to be modern award or enterprise agreement provisions enabling directions to take annual leave for shut down purposes, the notice requirements in these provisions may in many cases mean that this is not a practical approach.
In those circumstances, we’d recommend again engaging with your employees in an attempt to explain the scenario and attempt to have some reasonable discussion with a view to access to annual (or other leave) entitlements being agreed.
Require our employees to reduce their salaries or hours of work?
Apart from reducing hours for casual employees which of course can occur, a reduction in an employee’s hours of work or salary is likely to require their agreement as it will constitute a variation to their contract of employment. Again, engagement with the employee to explain the situation, the temporary nature of it and that it is being done in an attempt to reduce the need to implement more drastic measures such as redundancies, may assist in reaching agreement with an employee.
Q: One of our employees is being tested for COVID-19 and is currently in isolation awaiting results. What should we do upfront now and later if their result is that they are confirmed to have the virus?
We would recommend that you require the employee now to identify others in the workplace with whom they have had contact over the last 14 days and the frequency and duration of that contact. This is likely to extend beyond their immediate work team and may include other employees who have been in (for example) meetings, lunchrooms and training sessions with that employee.
Once the employee is diagnosed as having COVID-19, it will be necessary to communicate that to the employees who have been in contact with that employee. Guidelines from the relevant Departments of Health appear to indicate at this stage that self-isolation is only required for these employees where they have been in “close contact” with the impacted person (with “close contact” being at least 15 minutes of face-to-face contact or at least 2 hours in the same closed space) however these are regularly changing and so we would recommend that you review the most up to date health advice at that time.
Additional cleaning of the work area and communication to employees without that “close contact” that explains the symptoms of COVID-19 to them and asks them to be alert for them would also be an appropriate step.
Q: What happens in the event of a lock down of our office building, the CBD or the entire State?
These are scenarios where we see that the stand down provisions of s.524 of the Fair Work Act 2009 are likely to come into play. That provision allows for the stand down of employees without pay in circumstances where an employee cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
As we mention above, this is different to a ‘slackness of trade’ scenario and rather would come into play in the event of ‘lock down’ or the closure of office buildings or other workplaces (such as shopping centres).
Critically, it must be a situation where the employee cannot be usefully employed and so it is important to have considered the potential for remote working (either from home or another site) and the availability of alternative duties that can still be performed before a stand down is implemented. An employee must be allowed to take their paid leave entitlements (e.g. accrued annual or long service leave or, if the employee is sick, personal leave) rather than being stood down without pay.
We hope the above is of some help but, as always, are committed to walking the path with each of you (at the mandated 1.5 metre distance of course!). If you are facing particular COVID-19 situations that we haven’t covered above, please just pick up the phone and call a member of our team.
