Coronavirus – COVID 19 (as at 12 March 2020)
Considering the recent Coronavirus pandemic, employers should be taking necessary precautions to manage their business’ exposure to risks evolving from the situation. With over 112 confirmed cases currently within Australia, it is prudent that employers are aware of their obligations under the Work Health and Safety and Fair Work laws and regulations. The model Work Health and Safety (WHS) laws require a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of their workers and others at the workplace. This includes providing and maintaining a work environment
that is without risk to health and safety. Sick and carer’s leave (also known as personal leave or personal/carer’s leave) is defined by Fair Work:
“Sick and carer’s leave lets an employee take time off to help them deal with personal illness,caring responsibilities and family emergencies. Sick leave can be used when an employee is ill or injured. An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency. This is known as carer’s leave but it comes out of the employee’s personal leave balance.”
To qualify for personal leave as defined by the National Employment Standards (NES) under the Fair Work Act, an employee must be “not fit for work” because of an illness or injury affecting them. When IS personal/carers leave granted under the NES?
- An employee informs you that they have contracted the Coronavirus
- An employee needs to care for an immediate family or household member who has contracted the Coronavirus
The FW Act defines “Immediate Family Members” as:
- spouse or former spouse
- de facto partner or former de factor partner
- sibling, or
- child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or former spouse or de factor partner)
The FW Act defines a “Household Member” as any person who lives with the employee.
When is personal/carer’s leave NOT granted under the NES?
- When an employee has come into contact with a person who has Coronavirus
- When an employee has returned from travel to a High-Risk country but is not yet sick themselves
- If the employee is employed on a casual basis
As of 10th March 2020, the Australian Government considers the following countries to be High-Risk:
- Mainland China
- Republic of Korea (South Korea)
The Government Advice regarding persons returning from mainland China, the Republic of Korea or Iran is that they should isolate themselves for 14 days following their return from any of these countries.
Any persons returning from Italy:
- should present for health screening at the border as directed
- are not required to isolate at home (unless instructed)
- should not attend work for 14 days if they work in healthcare or residential aged care
As of 10th March 2020, the Australian Government considers the following countries to be Moderate-Risk:
- Hong Kong
Employees should monitor their health for 14 days after returning from any of these countries.
The health and safety of staff and those they come into contact with must be the employer’s top priority. It is also an inherent requirement of any employment contract that employees are required to:
- carry out their employment without endangering the safety of other persons
- be “ready, willing and able” to work in order to be paid for their service
Employers therefore should direct their employees to declare if they:
- are feeling unwell and may be suffering flu-like symptoms
- have been in contact with someone who has or may have been in contact with someone who has Coronavirus
- have recently travelled to a country affected by the Coronavirus including those through which they have transited
Employer Best Practice
All employers should be taking the necessary precautions to manage the risk and exposure to work health and safety arising from Coronavirus. It is important to remember that although there are mandatory obligations an employer must abide by (as abovementioned), employers may need to consider discretionary options, remain flexible and approachable, and ensure that “best practice” is applied when facing difficult scenarios that may arise from the Coronavirus. First and foremost, employers should as a minimum:
- Provide the resources so that employees can gain access to critical information regarding the Coronavirus, for example, World Health Organisation announcements and/or Australian Government Department of Health advice.
- Provide employees with simple information regarding how they can practice and maintain good hygiene.
- Advise employees that the business is aware of the situation and is consistently staying up to date with any developments that arise.
- Work together with employees to find appropriate solutions that suit the needs of individual workplaces and staff.
- Be aware that an employee may be eligible to be paid if an employer directs them to stay away from work without substantial and/or legitimate reason.
- Be aware that if the business can demonstrate that an employee poses a sufficiently material risk to the health and safety of the workplace, there is reasonable basis for the employer to insist that the employee remains away from the workplace on unpaid leave (or annual leave if requested) until the material risk dissipates.
- Remain current with their knowledge of legal obligations – ensuring all obligations are met with regards to ensuring that the business does not discriminate by taking adverse action against an employee or prospective employee because of a protected attribute, for example, race, religion or social origin.
As more is now becoming known about the prevalence of Coronavirus in Australia, it is worthwhile or employers to look to utilise practical solutions to the situation. Employers should also ensure that consideration is given to the short-term costs to their business against the long-term benefits that may arise. There are a number of practical solutions that may be appropriate to difficult situations that arise from Coronavirus. Note, some of these practices may not be viable to some businesses.
For example, if employees are instructed to self-isolate for 14 days but have not been diagnosed with Coronavirus, employers could:
- Permit the employee to work from home.
- Provide discretionary paid leave so that the employee does not suffer from a loss of pay.
- Direct the employee to undergo testing (if available) so that if they are cleared, they can return to work before the 14-day isolation period concludes.
Bramwell Partners encourages employers to remain approachable, transparent and flexible within the current environment. Please contact us if you have any concerns, questions or queries, whilst we may not know the black and white answer (if there is one!) we will work with you, as the employer, to find the most practical solution for your business.
Please see below for links to important information relating to Coronavirus:
- Australian Government Department of Health: https://www.health.gov.au/
- Fair Work Ombudsman: https://www.fairwork.gov.au/
- World Health Organisation: https://www.who.int/