Here is an update about where employers currently stand regarding the Coronavirus (COVID-19) situation. The three main questions that we’re getting asked are:
- What happens if we have to close or we’re directed into quarantine?
- Can I direct an employee to go home if they’re sick?
- What are the implications of an employee working from home?
What happens if we have to close or we’re directed to go into quarantine?
Most modern awards and employment contracts should have a Stand Down or Force Majeure clause in them. We commonly see this clause in times of natural disasters such as cyclones, floods or fires. The basis of this clause is that if there is an event that is outside the employer’s control then the employer can stand the employee down without pay for the period of time that that business can’t operate. For this clause to apply the event has to be outside of the employer’s control and COVID-19 would certainly fall into that category. If you are directed to close, or we are all directed into quarantine then you would advise your employees of that direction. Your employees would then utilise their annual leave entitlements or if they don’t have enough annual leave available to them, then they’d take unpaid leave.
Our advice though is to check that your award/contract contains a Stand-down Clause and the basis of that clause, as some modern awards actually state that the employee is to be stood down on full or partial pay. If you’re unsure please reach out to us so we can advise you.
You may also want to start having these discussions with your employees now. Obviously, your employees are aware of what is happening across the world and they will want to know what their entitlements are in this situation.
We also need to stress that this advice, does not apply if you make the choice to temporarily close your business for precautionary measures i.e. you have not been directed to do so. If that is the case, please reach out to us and we will provide you specific advice for that situation as that is different.
Can we direct an employee to go home if they’re sick?
Under the National Employment Standards, an employer cannot direct an employee to take personal leave. However, under Workplace Health and Safety legislation an employer is obligated to maintain a safe and healthy workplace. If an employer reasonably feels that an employee is a causing significant and imminent risk to themselves or other persons in the workplace then they can request the employee attends their doctor for medical clearance. The key here is that it must be a genuine and reasonable belief that an employee coming to work is putting their health or safety or the health and safety of other workers at risk.
In cases of particularly contagious diseases such as chickenpox, smallpox or even COVID-19 then this would be a reasonable and genuine belief. So, if an employee has been diagnosed with COVID-19, then you can certainly direct them not to attend work whilst they are contagious. However, if they just have a general cold, or even the flu then it’s unfortunately a grey area and unlikely to be a reasonable direction. This however, will depend on your particular workplace, your polices and culture and what type of industry you’re in. Please reach out to us if you have specific questions about this or you’re considering directing an employee to go home.
What are the implications of an employee working from home?
Normally, when we start a remote working arrangement with an employee somebody needs to attend that employees premises to do a workplace health and safety audit. We’re obviously in an unprecedented time and it may not be appropriate for a person to attend another person’s home to complete the risk assessment. To assist with that, we’re making available a Workplace Health and Safety Checklist that you can email to your employees if they are going to work from home. They can then conduct a self-audit on their home work space.
If you’ve got any concerns or queries or would like a copy of the template, please don’t hesitate to contact us. We will provide you with updates if and when the situation changes.