Coronavirus and the workplace

Coronavirus and the workplace

Monopolising media coverage since its outbreak in December 2019, the potentially deadly coronavirus (COVID-19) has not just limited itself to widespread disruption to cultural events and travel plans and, not least of which, harm to those who have contracted it, but it has now emerged as a genuine factor in the Australian workplace.

A client recently reached out to us seeking guidance as to how to handle an employee who had just returned from a holiday to mainland China.  When the employee initially returned to Australia, his employer asked him (to which he readily agreed) to see a GP and upon visiting the GP, was advised to refrain from attending work for 14 days as a precaution. The employer was unsure how to treat the additional 14 days away from work, and whether to require the employee to take it as annual leave or unpaid leave. The employer did not turn its mind to whether the employee could take personal leave. In this client alert we step through various scenarios and how an employer should respond. For completeness, this advice concentrates primarily on permanent employees who have an entitlement to paid annual and personal leave.

What happens if an employee or their family member is sick with coronavirus?

Under the NES, a permanent employee is entitled to paid personal (sick) leave when:

1. he or she is unfit for work because of their own personal illness or injury (including pregnancy-related illness); or
2. to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member.

Furthermore, casual employees are entitled to 2 days of unpaid carer’s leave per occasion.

If a permanent employee, or a member of the employee’s immediate family are suffering from coronavirus, they are entitled to take paid sick / carer’s leave as would be the case for any other personal or family illness or injury.

Of course, the employer is well within its rights to ask the employee to provide evidence that they have been diagnosed with an illness.

In the event that the employee has no paid personal leave available, the employee has the option to use annual leave or to take unpaid leave.

What if an employee is stuck overseas or required to be quarantined?

This is a unique situation that is not imagined under the legislation or under the National Employment standard. For example, several Australian employees have been quarantined on cruise ships as well as in temporary accommodation and are unable to return to work as scheduled. There may also be numerous Australians unable to fly home as a result of the current travel bans. In these cases, the employee should contact their employer as soon as is practicable and the employer and employee settle on a mutually agreeable plan. This may include the employee taking paid sick leave, paid annual leave, taking leave in advance, taking any other leave available (such as long service leave if available) or unpaid leave by agreement.

An employer however, is not required to pay for the employee if the employee is unable to attend for work. A more interesting issue, is whether the employer can terminate the employment because the employee is unable to perform the role. This raises the legal argument of frustration. In other words, the purpose of the employment contract, being the employment of the employee has been frustrated by no fault of either the employee or employer. Unless, the performance of the role is critical to the business and it is not able to operate for extended periods without the role being performed, and temporary solutions to fulfilling the role are not viable, the reliance on frustration will be problematic.

What if an employee wants to stay home as a precaution (on advice of their GP or otherwise)?

If an employee wants to stay home as a precaution, and in effect place themselves under quarantine, a number of options may be available to the employer and employee. For example, if the employee has not tested positive for coronavirus but has been advised by a GP to stay home as a precaution, the permanent employee can apply for leave through the normal process. If the employee has personal leave available, despite not suffering from symptoms that would make him or her unfit for work, it is arguable that the employee is entitled to take personal leave considering he or she is acting on advice from a medical professional.

If the employee has not been provided such advice but wishes to stay home as a precaution (for example, where another employee in the office reported ill), the employee might choose to take paid annual leave.

Of course, during the precautionary period where the employee remains at home, there is no reason why the employee should not be given the opportunity to work from home where practical to do so. If the employee can ostensibly complete work during the precautionary period from home or another remote location, they may not need to take leave at all.  This is the best resolution as an employee may resent using their accrued entitlements to stay away from the workplace as a precaution, particularly when they feel fit for work.

What if an employer wants their staff to stay home?

Under work, health and safety legislation, employers have an obligation to ensure that the workplace environment is safe. Where an employee has recently travelled through mainland China or has been in contact with someone with the coronavirus, an employer is perfectly within its rights to request the employee seek medical clearance before attending the work premises. In circumstances where medical clearance is not provided, or where the employer directs the employee to stay home as a precaution, it is arguable that irrespective of whether or not they have accrued annual or personal leave available, the employer will be obligated to pay the employee whilst subject to the direction to stay home.

Alternatively, if the nature of the work allows it, the employer might direct the employee to work from home for a nominated period to which the employee would be subject to remuneration as usual.

Unless the employee is subject to a unique rule under an enterprise agreement or contract of employment that allows the employer to stand down the employee without pay, if the employer directs the employee to stay home, they will likely be entitled to their normal remuneration.

Employer’s duty to prevent discrimination

Unfortunately, the coronavirus has caused examples of discriminatory conduct towards individuals on public transport and in public. It is vital that the employer takes steps to ensure that such conduct does not spill into the workplace.  As described above, employers are obligated to provide a safe work environment and discriminatory conduct towards an employee or group of employees might find the employer in breach of this obligation.

In circumstances where the employer is faced with an employee or group of employees requiring to take leave for actual illness or as a precaution in the event they become ill, employers must ensure they observe their legal obligations under the national employment standards and applicable industrial instruments along with their obligation to provide a safe and healthy workplace that is free from discrimination.