From 14 October 2022 it will no longer be mandatory to isolate if people test positive for Covid-19. This further opening up reflects the high levels of vaccination in Australia as well as a strong desire to return to pre-pandemic life. However, the official health advice remains that people who test positive should stay home until their symptoms have gone.
Employers need to give careful consideration to what they will do when a Covid positive employee turns up for work. Employees in high-risk environments dealing with the elderly, sick or vulnerable (such as healthcare and aged care facilities) remain prohibited from returning to work for 5 days. What about other workplaces?
Employers have obligations to all employees to provide a safe workplace, including minimising risks to health and safety which includes exposure to infections such as Covid-19. As we saw with vaccination, employers are able to adopt policies that go beyond the government measures and can set their own rules, though they may be open to challenge in specific circumstances.
Employers will need to give careful consideration to weighing up how they intend to deal with the situation of Covid positive employees attending for work. Where a symptomatic employee can be directed to work from home, this would be preferable. Where work cannot be undertaken from home, an employer can request the employee to take personal leave (but cannot direct that they do so). If the employee refuses, or does not have any personal leave accrued, a difficult decision will need to be made about whether to pay the employee for the time off work or to assert that they were not fit for work and therefore not entitled to payment. Refusal to pay the employee may open the employer up to further claims from the employee, and such a decision should not be made without obtaining legal advice tailored to the specific situation.
There may be other options available, such as Covid positive employees being directed to wear a mask to reduce the risk to other employees or the ability to physically separate infected employees from other employees within the workplace. However, this may not be appropriate in all workplaces, or where the Covid positive employee is symptomatic, given the increased risk of transmission where symptoms such as coughing or runny nose are present.
Employers will need to give careful consideration to the specific circumstances of their workplace in order to arrive at a sensible policy for how to deal with the inevitable situation of employees arguing that they are able to attend work when Covid positive as the government no longer prevents it.
If you require assistance with preparing a workplace policy, on this or any other issue, give our employment law team a call today.
