Coronavirus: Employer obligations and responses

by Luis Izzo, Managing Director, Australian Business Lawyers and Advisors (ABLA)

All employers should be taking precautions to actively manage their business’ exposure to health and safety risks arising from coronavirus.

The Australian Government considers the following countries to be a higher risk for contracting Coronavirus:

• Mainland China
• Iran
• Italy
• Republic of Korea (South Korea)

Broadly speaking, if persons are returning from mainland China, the Republic of Korea or Iran they should isolate themselves for 14 days after leaving mainland China, the Republic of Korea or Iran.

For persons arriving in Australia from Italy, they must present for health screening at the border as directed. Unless instructed to isolate, persons are not required to isolate at home. However, healthcare workers and residential aged care workers should not attend work for 14 days after leaving Italy.

The Government advice can be located here: https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert

Moderate risk
The Australian Government considers that persons who have recently travelled to the countries below are at ‘moderate risk’ and should monitor their health for 14 days after leaving these countries:

• Cambodia
• Hong Kong
• Indonesia
• Japan
• Singapore
• Thailand

What do I tell my employees?
 If an employee tells you that they:

• Are feeling unwell and may be suffering flu-like symptoms;
• have been in contact with someone who has or may have been in contact with someone who has Coronavirus; or
• have travelled to an area affected by the Coronavirus (such as China),

they should be directed to follow the above Australian Government advice and seek medical advice immediately.

The health and safety of staff and those they come into contact with must be an employer’s top priority. This should dictate the approach any employer takes to responding to employees that may have come into contact with Coronavirus.

It is also prudent to:

• Direct employees to declare any upcoming or recent travel (including areas through which the employees have transited) so that employers can assess the prospect of risks to health and safety arising from staff movements generally; and
• provide employees with simple information regarding how they can maintain good hygiene. Helpful advice can be obtained from the World Health Organisaiton at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public

Availability of personal leave  
If an employee informs you that they have contracted the Coronavirus or need to care for a member of their immediate family or household who has contracted Coronavirus, then they will be entitled to take personal leave under the NES.

However, personal/carers leave is not available where an employee has come into contact with a person who has Coronavirus or where an employee returns from travel to a high risk area as outlined above, but is not yet sick themselves.

This is because, to qualify for personal leave, an employee must be “not fit for work” because of an illness or injury affecting them. It is unlikely that this pre-requisite will be met by persons who are not yet diagnosed as ill but merely require isolation.

How should an employer pay employees who are isolated, but not diagnosed with Coronavirus?
Given the likely inability to provide personal leave in cases where employees require isolation but have not been positively diagnosed, in most cases, employers should look to utilise practical solutions to address the employee’s absence.

By way of example:

• In some cases, employers could permit the employee to work from home. This ensures a level of productivity is retained and will allow the employee to continue to be paid wages during the isolation period; or
• where working from home is unavailable, employers may wish to provide discretionary paid leave to employees so that they do not suffer from a loss of pay during the isolation period.

As an employer it is worthwhile considering whether discretionary options such as those above can be accommodated. Employers will need to balance the short-term cost associated with these measures against the longer-term benefits that may arise.

What if I am unwilling or unable to make payments to an employee who needs to be isolated (but is not diagnosed with Coronavirus) during this period?
For some businesses, it might not be feasible to pay employees who are required to self-isolate.

If an employer is unwilling or unable to pay employees whilst in isolation and an employee maintains that they are able to work, then employers face a difficult scenario: the employee says they are fit to work, but the employer has concerns that the employee is not fit to work without posing unacceptable safety risks to the workforce.

The best means of resolving this impasse is to direct the relevant employee to undergo testing if testing is available.

Once the test is undertaken, if the employee is cleared, they are able to return to work (best practice would dictate the employer pays the employee for the relevant period). If the employee tests positive, then they can be permitted to take personal leave for the duration of their absence.

What if testing is unavailable for employees in isolation?
It is uncontroversial that:

• It is an inherent requirement of any employment contract that employees are required to carry out their employment without endangering the safety of other persons; and
• in order to be paid for their service, employees need to be “ready, willing and able” to work.

These principles will govern an employer’s approach to employees who are told to isolate in circumstances where testing is unavailable (or refused by the employee).

Broadly speaking, two scenarios are likely to arise:

• Firstly, in some cases, an employee may have had levels of contact with persons exposed to Coronavirus which means the risk to safety presented by the employee’s presence at work is materially greater than other employees. By way of example, if an employee has just returned from mainland China or has been living with a person who has contracted Coronavirus, the employee will likely present significantly greater risks to the workforce than most other workers.
• In other cases, an employee might have had a level of contact that causes an employer some anxiety but not material concern - by way of example, the employee’s child might have attended a school where there was a Coronavirus diagnosis or the employee may have returned from travel to an area designated by the Australian Government’s health advice as ‘moderate risk’. Whilst there is some risk associated with contact with the relevant employee, the risk might not be materially greater than that posed by other workers who have been to supermarkets, gone to a football match, etc.

In the second scenario, it is unlikely that an employer will have a legitimate basis to direct an employee to stay away from work without pay. Rather, if the employer is directing the employee to remain away from work, the employer will need to pay the employee for the relevant period.

In the first scenario, a level of debate is likely to arise. However, provided the employer can demonstrate the relevant employee poses a sufficiently material risk to health and safety that cannot be mitigated, there is a reasonable basis for the employer to contend that the employee must stay away from work on unpaid leave (or annual leave if requested) until such time as the material risk dissipates (according to current Australian Government advice, this is likely to be a period of 14 days from possible exposure). This is because the employee is unable to presently work without posing unacceptable risks to health and safety.

What about casual employees?
Casual employees are not entitled to sick leave. This means that a casual employee who is diagnosed with Coronavirus may be required to refrain from presenting to work without additional payments.

Furthermore, where shifts to casual employees are reduced either on account of business downturn or because the employee has been required to isolate (due to contact or recent travel), the employees will not be entitled to payment during this period.

Where do I go for further advice?
For further advice on any of the above matters, please contact our team of workplace relations experts at Australian Business Lawyers & Advisors on 1300 565 846 or [email protected].