Legal Insights

Coronavirus – the ABCH guide for Australian employers as at 12 March 2020

By Catherine Dunlop, Dale McQualter & Gerard Twomey

• 06 April 2020 • 10 min read

In responding to COVID-19 the Employment & Workplace team have put together the ABCH guide for Australian employers as at 12 March 2020.

A = Absences

Your organisation should have a settled position regarding absences and leave, at least for full time and part time staff. Your position regarding casuals may depend on the Commonwealth Government’s policy.

If staff have been unwell, you should consider if you really require them to produce a medical certificate or if that puts an unnecessary strain on the health sector.

You should have a position on when staff return to work after a period of illness. Currently, unless they have been exposed to Coronavirus, they are unlikely to be tested for it. Do you want them to work from home and/or self-isolate if they have had similar symptoms, or will you ask them to return to their regular workplace when they are symptom free? You should review this position as the advice from authorities changes.

An employee is infected with Coronavirus

An employee should take personal (sick leave) leave. If this is exhausted:

  • they may elect to take annual leave or unpaid personal leave;
  • they may apply to take any long service leave; or
  • you may choose to grant them leave without pay or paid special leave.
An employee is caring for someone infected with Coronavirus

You should consider whether the person wishes to and is able to work from home (either for their normal hours or as a temporary flexible work arrangement).

If this is not possible or the person is not working their normal hours, they should take personal (carer’s) leave. If this is exhausted they may elect to take annual leave or unpaid personal leave or apply to take any long service leave. You may choose to grant them leave without pay or paid special leave.

The employee may also have an entitlement to compassionate leave for each occasion if a member of the employee’s immediate family or household’s illness poses a serious threat to his/her life.

You should require a medical certificate or the expiry of the advised self-isolation period before they return to work with colleagues.

An employee is required to care for another who is not infected (ie. because of school or child care closures)

OR

An employee is able to work but has a mild infection and is advised not to attend at a workplace

The employee should work from home if this is possible.

If this is not possible, they should take personal (carer’s or sick) leave. If this is exhausted they may elect to take annual leave, unpaid carer’s leave (if this is applicable) or apply to take any long service leave. You may choose to grant them leave without pay or paid special leave.

An employee is:

  • unable to return from overseas;
  • required to self-isolate because they have travelled to a country with cases; and/or
  • has been in contact with someone who has or may have been infected with Coronavirus.

The employee should work from home if this is possible.

If the person is cleared by a doctor they can return to work. If not, they may need to take personal leave for the period of self-isolation. If this is exhausted they may elect to take annual leave, unpaid personal leave or apply to take any long service leave. You may choose to grant them leave without pay or paid special leave.

You might want to inform employees that if they undertake personal travel and subsequently become required to self-isolate, they may be required to take annual leave if this requirement is reasonable. You should get advice about this issue if you are unclear of the relevant legislative provisions.

You should review travel arrangements and we recommend you defer or cancel any non-essential international or interstate business travel. You should also review your insurance coverage for upcoming travel. Insurers have set 21 January 2020 as the cut-off date for COVID-19 related claims, being the date when the virus became a ‘known event’ for insurance purposes.

You should ask employees to inform you of any intended travel and you should regularly review the countries identified as higher and moderate risk by the Australian Government.

The Fair Work Act 2009 provides that employers have a right to stand down employees in certain circumstances. Modern awards, enterprise agreements or employment contracts may also contain stand down provisions and generally such periods are unpaid.

We recommend that all employers understand their obligations and employment frameworks and policies so you can answer the inevitable questions that your employees will have. You should consider stand down or any paid special leave issues carefully, including budget impact. You should obtain advice if uncertain of your obligations.

B = Business continuity:

Both the Commonwealth and State Government have powers to direct employers to close their workplaces to control the spread of Coronavirus and this could happen to your workplace with little or no notice.

You should plan for situations where large groups of your people (or in some cases all) may be unable to attend work, either through infection/exposure, carer responsibilities, or other isolation/quarantine requirements.

  • Does your organisation have clear understanding for who is responsible within the organisation for its response to, and management of, Coronavirus?
  • Do you have a good understanding of the work currently being undertaken by the individual members of your teams?
  • Do you know what events are coming up and deadlines that need to be met?
  • Who is stepping in for a staff member who is not at work due to Coronavirus? Is that person being supported in their role with their additional duties?
  • Do your managers know enough to fill the gaps and keep up with operations if employees are absent and ensure essential (and non-essential work) is able to continue?

We recommend that you have more regular staff meetings and ensure staff keep good electronic records to ensure that in the event of multiple people being unable to attend work for extended periods, the business is able to continue operating through those that are able to continue to attend work.

Working from home:

  • Review your working from home policy or procedure to ensure it meets your needs
  • Check that your policy meets your needs if employees are subject to quarantine or self-isolation.
  • Test and review your IT systems and business continuity arrangements to ensure the business can continue to operate if a large number of employees need to access IT systems remotely at the same time.

You should remember that you have obligations to consult on health and safety matters, including in relation to changes you put in place. For many employers a failure to do so may be a breach of your WHS/OHS Act responsibilities.

C = Communication:

Employers have a duty under WHS/OHS legislation to provide information to employees about health and safety in the workplace. You should provide regular updates to employees about the status of Coronavirus that are consistent with information provided by the Department of Health and WHO.

Employees may be anxious about the pandemic and could have questions about what will happen to their working arrangements and employment.

Consider:

  • What are you telling your team and your employees? Discourage fear amongst staff and about the culture of your organisation.
  • What is the best way to communicate with your staff? Consider regular briefings, email, instant messaging, information hotline, details of a designated contact person.
  • Information updates from employers should promote a culture of respect and understanding amongst employees and avoid creating an environment of fear and discrimination. Employees should also be encouraged to ask questions and share information about their concerns.
  • Consider displaying Coronavirus information material in your reception areas, and/or in email footers that is consistent with guidance coming from the WHO. We suggest you consider this approach to indicate to clients and customers that you have expectations about what they should do while in your workplace.
  • Consider the tone, type and frequency of communications with infected colleagues. This will be particularly relevant if staff are in self-isolation and are worried or fearful.

Regularly check the websites of the relevant authorities and pass on regular, accurate and up to date guidance and information to your staff:

H = Health & Hygiene:

The three most important things that your employees can do now to counter the spread the virus are to:

  1. Not come to work if they are sick or have been potentially exposed to Coronavirus
  2. Wash their hands thoroughly
  3. Clean their workspaces, particularly if they are shared.

It is vital for employers to remind employees and visitors to their workplaces about the importance of good hygiene, especially during a virus outbreak.

You should consider the following:

  • Display signage reminding people to wash their hands regularly and thoroughly. The WHO and Department of Health provides clear advice on hand washing that you may find useful. You should remind staff that a quick splash of water will not do the job.
  • Consider installing hand sanitiser dispensers in meeting rooms, lunch rooms and high pedestrian traffic areas such as reception areas.
  • Remind employees that they should not present at work if they are unwell, and they should sneeze or cough into their elbows and not their hands. Employees who share equipment such as phones or laptops should wipe down this equipment with a sanitising wipe after use.
  • Many modern workplaces have open top bins or no bins at workstations. If this is your workplace, you may wish to consider implementing systems for disposing of tissues and paper towels hygienically.
  • Consider removing food and cutlery from communal areas.

If your employees do or may work with people who are susceptible to serious illness if they are infected with the Coronavirus, consider whether they understand and follow the advice from the authorities. You should consider reviewing your risk assessments and how you will be assured that employees are following your guidance on appropriate work practices.

Maddocks has produced guides to a range of legal issues raised by the coronavirus (COVID-19). You can access these guides here.

Need advice on responding to COVID-19?

Get in touch with the Employment, Remuneration & Benefits team.

By Catherine Dunlop, Dale McQualter & Gerard Twomey

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