As COVID-19 continues to expand across Australia, businesses must comply with national and state directions to implement control measures and minimise the spread. We have received a spike of employment and safety questions from our clients including whether leave and flexible work policies are adequate, what is the best protocol for employees during this time, and how to manage staff who prefer to stay at home and self-isolate.
This blog hopes to assist with some of these key issues employers are currently facing.
Employers have a duty of care for the health and safety of their workers and others at the workplace. Under the model Work Health and Safety (WHS) laws, workplaces that continue to trade must implement control measures to minimise the spread of the virus. These may include:
- ceasing non-essential work activities that involve close personal contact (less than 1.5m)
- implementing controls to reduce direct contact with workers and customers, including:
- social distancing of at least 1.5metres (1 person per 4sqm indoors)
- barriers to create space at counters, between workstations, seated areas etc.
- modifying shifts and rosters to reduce peak periods
- actively supporting flexible work arrangements, including working from home.
- Implementing controls to reduce environmental exposure, including:
- inspecting and reviewing air conditioning and ventilation systems
- increasing cleaning and disinfection of high traffic areas or shared surfaces
- provide cleaning products and instruction for cleaning workspaces
- provide instruction and amenities for personal hygiene and infection control
Leave policies surrounding COVID-19
We appreciate businesses are faced with the task of implementing or refining policies on flexible work arrangements, and existing policies may be tested due to significant disruption.
An employee who is not unwell or caring for an immediate household member who is unwell will not be legally entitled to personal leave, even in the circumstance they are required to self-isolate or quarantine. However, many businesses who can do so are allowing employees to use their personal leave to cover these absences. Employers should consider sick/personal leave policies and may wish to update for special circumstances and employees who are required to be isolated or quarantined.
Employers can encourage employees to use accrued annual leave or long service leave in the event they are required to self-isolate or quarantine and are unable to work from home.
Long Service Leave
There is now greater flexibility for employers and employees to access leave during the COVID-19 crisis. Employees are entitled to take long service leave in shorter blocks such as a day a week and the one month’s notice period has been removed. However, both you and your employee must agree to such an arrangement.
Earlier this week, we posted 5 tips to help safeguard business continuity. Essentially this requires employers to be flexible across their policies and adapt to this rapidly changing environment.
Workplaces should develop contingency strategies for worst-case scenarios and prepare to manage protect the business in the long term. Employers should be prepared to adapt by implementing these prepared response plans.
If it is not possible for employees to work from home, employers should consider implementing a roster arrangement that facilitates appropriate social distancing while ensuring that the business can continue to operate and employees can retain their employment. This may mean splitting your working force into separate teams who rotate from working at home and working at their usual workplace.
Employers have duties to employees who are working from home or undertaking work remotely, and must take steps to ensure, so far as is reasonably practicable, their health and safety. This might include refining policies surrounding working remotely and encouraging staff to take regular breaks, use an appropriate desk, maintain good sitting posture, and that long periods of continuous computer use are broken up with other tasks.
It is also important to reiterate the hours that employees may fulfil their duties, and the required hours of work employees should complete each day.
Work Health and Safety (WHS) laws
Under the WHS laws, employers must seek to minimise safety risks for their staff. Employers must do everything that is “reasonably practicable” to ensure that employees are working in a safe environment. This may include the items listed under Workplace Protocol, but even extends to your responsibilities while staff are working remotely.
To meet your duties, you must identify risks at the workplace, and where possible eliminate or minimise those risks. This duty extends to employees who are working from home. Examples you might like to consider if staff are working from home include restricting prolonged periods without appropriate breaks, ensuring breaks involve changing posture, and prohibiting lifting, pushing and carrying that is not within the physical capacity of the employee.
Employees contracting COVID-19 at work
It is conceivable that if an employee contracts COVID-19 at the workplace while they are working, they may be entitled to make a workers’ compensation claim in NSW. Presumably, it will be a matter for evidence as to identifying the source of how the employee became infected by the virus at the workplace..
In the event an employee tests positive, the employer must notify the National Coronavirus Helpline or Healthdirect or other relevant government authority and provide details of the employee, the period they were at work, steps that were taken to reduce contamination, and the measures taken by the employer in response to the incident.
Employers should consider how they can support the wellbeing of their employees in an anxious environment. They will possibly be scared and unsure for their jobs. Let them know you are in control and that while there is a tough outlook in the short term, the business is prepared to sustain things as best it can. Be honest but positive and rally your team to give all the productivity they can is the best plan of action. Keep connected with your employees through daily short meetings via Zoom, WhatsApp, Microsoft Teams or Slack.
Redundancies and standing down employees
In the unfortunate event that employers are unable to retain staff, it is important to carefully consider options before making a decision to either terminate or stand down employees without pay. Employers must carefully consider the stand down provisions of section 524 of the Fair Work Act 2009 (Cth) as well as any additional rule or provision in the employee’s employment contract, enterprise agreement and Award. Employers should first consider whether there are any alternative duties that may be performed by employees, give the employee the option of taking unpaid leave, annual leave or long service leave where available, and consult further with unions. If an employer stands down an employee unlawfully, the employee may make a claim for payment of lost wages.
If an employer is contemplating making an employee redundant, the employer must consider the terms of the employee’s contract, enterprise agreement and Award as well as comply with the applicable termination notice periods and pay the correct redundancy payout.
We strongly recommend an employer seek legal advice before making a decision to terminate or stand down an employee.
Things to keep in mind
COVID-19 will continue to have serious personal, professional and economic impacts on our community. While we are navigating unknown territory and are unsure how long we will be faced with these issues, there may be further items for consideration in the coming weeks. We will endeavour to provide further updates when the situation evolves.
For further information about legal obligations as an employer, please go to SafeWork NSW or SafeWork Australia or your relative workplace, health and safety body for your applicable state or territory
If you have any questions or would like advice on your obligations as an employer, please contact a member of our team.