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Employment Law and COVID-19

Depending on your organisation, you and your team may be working remotely, running staggered rosters, or working modified duties on site.

These changes, coupled with the ongoing health and economic threat of the pandemic, can have a significant impact on employer and employee wellbeing, and on a business in general.

For employers or organisation leaders, this is primarily a health crisis with significant economic consequences – one of which raises many commercial law questions.

Employers should consider their obligations under any award, enterprise agreement, employment contract or workplace policy, which could include extra rules about sick and carer’s leave.

Keep in mind, the answers may vary depending on what may be in your business’ employment contracts, policies and enterprise agreements.

The commercial lawyers at Clearpoint Legal have put together five of the most commonly asked questions in the below Q&A. 

Question One

What if an employee is required to self-isolate (e.g. because they have been in close contact with a confirmed case of covid-19) – are they on paid or unpaid leave?

The employer may stand down the employee without pay. This is because an employee cannot work due to a government direction regarding self-isolation or social distancing. 

However, the employer may consider alternative arrangements to mitigate the financial loss to the employee such as working from home (if possible) or utilising their accrued paid leave entitlements. 

Question Two

What if an employee refuses to come into work, or perform certain duties, as they are concerned about being exposed?

If an employee refuses to attend work (or perform certain duties) as a precaution against being exposed to coronavirus, unless the employee is acting in accordance with government directions to do so, the employer does not have to pay them or allow them to access leave (but it is open to the employer to agree to do so).

Depending on the circumstances, an employee could be subject to disciplinary action if they refuse to attend work or perform certain tasks or duties if the direction is lawful and reasonable and does not put the employee at any risk. However, this is not clear cut, as there are protections for employees (including under discrimination laws, safety legislation, and the general protection provision of the Fair Work Act), that prevent an employer from taking action against employees for raising genuine safety concerns.

Question Three

Does my employee need to show proof of a positive covid test?

There are extensive privacy law and discrimination law provisions that prevent an employer from obtaining information about the health status of their employees without the consent of the employee. However, an employee needs to give their employer reasonable evidence that they aren’t fit for work if their employer asks for it. This also applies to situations relating to coronavirus. See Notice and medical certificates.

Question Four

What if the employer needs to close all or part of the business?

If a business is required to temporarily cease its operations due to a government direction (e.g. closure of a business, inability to adhere to social distancing requirements, etc), the employer has a right to stand down employees that cannot usefully be employed as a result – without pay. This is because the closure is outside the control of the employer.

The situation is more unclear where employers are partially affected by a government direction and this causes a slow down in work. Advice from the Fair Work Ombudsman provides that employers cannot generally stand down employees simply because of a deterioration in business conditions. However, the unique impacts of coronavirus have created situations where stand-downs may still apply.

Question Five

If I need to make employees redundant because of COVID-19 impact, what must I do?
Answer:  The Fair Work Act requires that employers comply with an appropriate process before they make roles redundant. Additional obligations may also be included in your employment contracts or company policies.  You should seek advice from an outsourced commercial lawyer, like the team at Clearpoint Legal, if you need to make genuine redundancies, to ensure you are complying with all requirements and to minimise the risk of unfair dismissal claims.

Clearpoint Legal can provide advice on employment strategies for standing down staff, varying employment contracts and making redundancies where necessary. We can assist with preparing documentation including contract variations, individual flexibility arrangements (IFA), Working from Home policies, and more.

Other information

Safe Work Australia 

Coronavirus information for employers

This document is intended to provide general information only in summary format on legal issues. It does not constitute legal advice.

Staff shortages. Business closed sign on door