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DBH Lawyers

- 18 Mar 2020
  • General

Unravelling the employment related issues arising from the Coronavirus outbreak

By Sarah Legoe (Solicitor) and Dylan Steel (Partner)

The coronavirus disease outbreak of 2020 (otherwise known as COVID-19) poses a serious public health risk, so much so the World Health Organisation declared the outbreak a pandemic as of 11 March 2020.  While Governments and health professionals are advising people to stay calm, the measures being taken by Governments to reduce the spread of the disease, are having a significant impact on how businesses operate.  As a result, questions have been raised around an employer’s rights and obligations in relation to the response.

It is important to note at the outset, that employers must be mindful to ensure any approaches taken to managing issues associated with COVID-19 do not breach discrimination laws.

Work health and safety obligations  

Employers have a duty to provide a safe and healthy work environment for all employees, pursuant to the Work Health and Safety Act 2012 (SA) (‘WHS Act’).[1]   In meeting this duty, employers need to identify health and safety risks and eliminate (or minimise) any hazards, so far as is reasonably practicable.  In addition, employers are required to provide information to employees about health and safety risks identified.

There are various measures that can be adopted by employers to meet these obligations, and these may vary depending on the size of the workplace, the industry the employer operates in and the location of the business, to name a few. Employers may wish to consider measures that:

  1. Provide employees with information about the possible symptoms of COVID-19.
  2. Provide employees with regular updates on COVID-19, based on information from Government sources.
  3. Address good hygiene practices.
  4. Give consideration to the use of personal protective equipment (if required).
  5. Limit person to person interactions.

Most importantly, employers should instruct employees not  to present for work if they are feeling unwell, are displaying flu like symptoms or any other symptoms associated with COVID-19, and to notify the employer as soon as reasonably practicable if they are.

Employees who have returned from overseas or have had close contact with someone who has

As of midnight 16 March 2020, the Government has directed that all persons entering Australia are required to self-isolate for 14 days, regardless of whether they are displaying symptoms or not.  Employees will not be able to attend the workplace until their mandatory period of self-isolation has expired (at the earliest).

Leave entitlements and work arrangements

The Federal and State Governments are taking steps aimed at reducing the spread of the disease, and the possibility of a Government imposed ‘shutdown’ becomes more of reality as the days pass.  In addition, businesses are being forced to close temporarily if exposed to an infected person.  This has resulted in the need for people to be absent from work and raises questions around what leave entitlements, if any, employees can access if they are required to be absent form work because of COVID-19.

Personal/Carer’s Leave

An employee (excluding a casual employee) can access paid personal or carer’s leave in the following circumstances:

  1. When they themselves are ill or injured;
  2. They are required to care for an immediate family member (or member of their household), who is ill or injured; or
  3. They are required to care for or support an immediate family member (or member of their household) as a result of an unexpected emergency (e.g. a school closure at short notice).

Employers are able to request evidence from the employee of their illness, their family members’ illness or the unexpected emergency.   A company Personal Leave Policy should be referred to for circumstances in which evidence is required to be produced, and updated if required.

Self-isolation or Government imposed quarantine

Employees are likely going to be concerned as to their pay arrangements in the event they are required to self-isolate for a period as a precautionary measure, or at the direction of the Government.  If such scenario arises, the following could be considered (noting each scenario may be different and therefore advice should be obtained):

  1. Allowing employees to work remotely (if possible).
  2. Use of personal leave (if any) if the employee is ill or caring for someone who is.
  3. Providing access to any accrued annual leave or long service leave entitlements.
  4. Providing a period of unpaid leave.
  5. Introducing special paid leave.

Shut downs, closures, and other issues

Workplaces may be required to shut down or close as a result of Government imposed measures, or because an affected person has attended the premises.  In these scenarios, employers may want to consider allowing employees to work from home so as to limit the impact on business operations (noting this will not always be possible).  Work from home arrangements come with their own risk and so should be carefully thought through before being implemented.

Work from home arrangements are not always possible, and the circumstances may be such that an employer is not able to provide work to the employee (because of a required closure).   The Fair Work Act 2009 (Cth) does provide a mechanism by which employees can be stood down when they cannot be usefully employed because of an event outside of the employer’s control (e.g. Government mandated close downs).  A contract of employment or Industrial Instrument (i.e. Award or Enterprise Agreement), may contain stand down provisions and, if so, that must be referred to rather than the Act.  During a stand down, employees do not need to be paid, but do still accrue annual and personal leave (if applicable).  However, it is recommended this be approached with caution and legal advice is obtained before taking such measures to ensure compliance with the requirements.

The full economic effects of the pandemic will not be known for some time.  However, early indications would suggest there is likely to be a downturn in economic activity, and it is therefore a real possibility that business may need to give consideration to reducing employee numbers.  Legal advice should be obtained before takings steps in this regard in order to ensure the correct process is followed.

Further information

It is important that employers maintain open and transparent communication channels with employees during this difficult time, and keep them appraised of steps being taken to minimise any health and safety risks.

The response to COVID-19 is evolving rapidly, and the possibility of a Government imposed ‘shutdown’ becomes more of a reality as the days pass.  Therefore, there is the potential that employers may need to take action at short notice which is outside the scope of this article.   Employers should seek specific legal advice on how to best approach the situation at the relevant time.

Contact the Commercial Team on (08) 8216 3394 for further information on how to address the impacts of COVID-19 on your business or any employment related issues arising as a result.

The content of this article is current as of the 18th of March, 2020.

Disclaimer:  This Article provides a summary of the subject matter only.  The information contained within is not intended as advice, legal or otherwise, and should not be relied upon as such.  Please contact us should you wish to discuss the subject matter of this article further or to obtain professional advice on the same.

[1] Or equivalent legislation in other States and Territories if applicable.