Novel Coronavirus COVID-19 and Australian workplace laws

Implications of Novel Coronavirus COVID-19 for Employers

On 11 March 2020 the World Health Organisation has declared that the outbreak of COVID-19 is a pandemic. Employers have been required to find a variety of solutions to meet the needs of their businesses and staff.
Our team of employment lawyers have been busy advising clients on the many complex factors and employment issues affecting their workplaces. Some common important considerations that have arisen are:
• When can employers direct employees to stay away from their usual workplace under health and safety laws.
• What leave can an employee take due to the coronavirus, including in cases of school closures.
• What happens if an employee is required to self isolate.
• Can the employer require the employee to get a medical clearance.
• What happens if an employee chooses themselves to stay home and they are not unwell.
• Redundancy and standing employees down, with or without pay, in the situation of Coronavirus
• How are independent contractors and casual staff affected.

Employers are encouraged to maintain up-to-date and effective workplace policies relating to infection control, educate and update employees on new information relating to COVID-19 in the workplace and direct employees to self isolate if they are feeling unwell, if they have been in any country or region listed by the Department of Health, or if they have been in contact with confirmed cases of the coronavirus.

The below has been provided for your information and is not to be relied upon as legal advice. Advice may differ depending on the employee’s applicable award, enterprise agreement, employment contract or policies affecting the workplace. If you wish to discuss your employment law matters or specific concerns please do not hesitate to contact our office on 9832 0608 or email us on info@lgmadvisors.com.au to get in contact with one of our employment lawyers.

When can employers direct employees to stay away from their usual workplace under health and safety laws?
Employers can direct employees to stay at home if they are sick with the coronavirus. They can do this if they are acting reasonably and based on factual information about health and safety risks and having regard to health and quarantine guidelines of the Australian Government.
What leave can an employee take due to the coronavirus, including in cases of school closures.
Paid sick leave is available to employees who are sick with coronavirus. This applies to full time and part time employees.

An employee is able to take paid carer’s leave if they are looking after a family member or a member of their household who is sick with coronavirus or suffering an unexpected emergency. This also applies if there is school closure because of the coronavirus.

Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. This will vary depending on any applicable award, enterprise agreement, employment contract or policies affecting the workplace.
An employer cannot require an employee to take sick or carer’s leave.
The Fair Work Act protects employees from being dismissed if they are temporarily absent due to illness or injury.

What happens if an employee is required to self isolate?
If an employee is required to self isolate due to the coronavirus, employees and employers will need to come to an agreement as to one of the following options:
– The employee may take sick leave if the employee is sick
– The employee may take annual leave
– Other leave may be taken such as long service leave or other leave available under any award or agreement
– Any other paid or unpaid leave may be agreed
– The employee and employer may agree that the employee may work from home

Can the employer require the employee to get a medical clearance?
It may be appropriate to direct employees to obtain a medical clearance before returning to work if the employee presents with flu like symptoms and does not wish to self isolate. Employers may need to pay employees their reasonable out of pocket expenses and for their absence from work for a reasonable period in order to do so.

What happens if an employee chooses themselves to stay home and they are not unwell?
An employee who wants to self isolate can only do so by agreement. They may request to work from home or take some form of leave, whether it be annual leave or long service leave. The usual processes apply relating to leave in the workplace.

Redundancy and standing employees down, with or without pay, in the situation of Coronavirus
An employee can be stood down if they cannot be usefully employed because of equipment break down, industrial action or a stoppage of work for which they cannot be held responsible. A common example are inclement weather or natural disasters. An employee may be stood down without pay in those circumstances. Different rules may apply depending on an award or agreement relevant to the particular workforce.
Deteriorating business conditions or because an employee has the coronavirus are not of themselves a sufficient basis to stand down an employee.
Redundancy may be the only option if the employer experiences a business downturn due to the coronavirus. Redundancy pay may be applicable and other laws, such as those relating to notice, continue to apply. Other options may be to stand an employee with or without pay depending on the circumstances.

How are independent contractors and casual staff affected?
Independent contractors are not employees and do not have paid leave entitlements under the Fair Work Act. However, contractors in the textile, clothing and footwear industries are considered employees for purposes of protections under the Fair Work Act and need to be separately considered.
Casual employees do not have paid sick or carer leave entitlements. A casual loading applies instead of paid leave entitlements. However, particular obligations may apply pursuant to particular awards and enterprise agreements or the employment contract applicable to the particular workforce.
Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. This will vary depending on any applicable award, enterprise agreement, employment contract or policies affecting the workplace.

LGM Advisors is a leading commercial litigation Melbourne professional law firm, the experts to contact when you require  commercial lawyers and employment lawyers. LGM Advisors have the skills, experience and expertise to ensure that you and your dispute is consulted upon with the utmost professionalism. Contact LGM Advisors today on (03) 9832 0608 or by email at marketing@lgmadvisors.com.au.

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