With Victoria currently in the middle of Stage 4 restrictions, with impending announcements to be made in the next few weeks concerning the lifting of restrictions (hopefully!), it’s a good time to revisit some of the trickier scenarios surrounding employment and employment-related laws.
There’s a lot of information out there at the moment, but as you will see below, there isn’t often a ‘yes’ or ‘no’ answer to many situations employers and employees may be finding themselves in, making the decision-making process difficult for many employers. Making an uninformed decision, or basing your decision around what you might find on the internet, may cause a lot of heartache down the track. Accordingly, we urge you to get in touch with us to discuss any of the matters below, or any other situation you might find yourself in during the COVID-19 pandemic. It might save you a lot of hassle in the long run.
Please note, the Q&A’s below are not an exhaustive list. These are just some of the more common scenarios we are seeing.
Can an employer direct employees to work from home or not attend their place of work?
Where there is a government directive (such as the increased industry-specific stay at home rules in stage 4), the answer is Yes. However, where the direction is based more on a general policy adopted by the employer (to enforce social isolation), an employee may be able to refuse to work from home.
The employer can also issue a direction to an employee to not attend the workplace where the employee needs to self-isolate because they are at risk of having COVID-19, due to exposure to others, travel, or are otherwise unwell.
Furthermore, it might be necessary for an employer to close the workplace (or part of) for a particular period, to assess the risk of infection, or to clean the workplace, to decrease the risk of further infections.
Can employees refuse to come to work?
If there is an unreasonable risk to the employee’s health and safety, the employee may have a valid reason to refuse to attend the workplace. However, generally speaking, where a refusal is only based on a general concern about being infected, then an employee cannot refuse to come to work.
What if an employee is unable to come to work (due to having covid-19, or needing to self-isolate) – is the employer responsible?
Where an employee has COVID-19, must self-isolate due to government directives, needs to care for others subject to quarantine/isolation requirements, or need to care for children who are unable to attend school due to school closures, these are all matters in the employee’s responsibility.
However, as an employer, it is prudent to ascertain whether they can allow the employee to work from home (if they are well enough), where it is possible for them to carry out their duties at home. In situations where this is not possible, the employer should inform the employee that they might be able to access personal leave, annual leave, or take a period of unpaid leave (also be aware of Award coverage and whether pandemic leave might apply).
Where the employee contracted COVID-19 due to exposure at work, this may shift the responsibility back to the employer.
Can you stand down your employees?
The stand down provisions in the Fair Work Act, meaning you can stand down employees without pay, can only be utilised in situations where the employer must shut down (i.e. government directive) and the employees cannot be usefully employed in other ways (i.e. working from home is not an option).
Before standing down employees, employers should consider all available options before making the decision to stand down without pay. This includes working from home arrangements, changes to duties/hours/rosters, accessing paid or unpaid leave and accessing government financial support (such as JobKeeper).
Employers already accessing JobKeeper must adhere to the JobKeeper enabling stand down directions. Be very mindful of these, they are very specific and must be followed. The JobKeeper payment must continue to be passed on to any employee stood down under the JobKeeper enabling stand down direction.
Can I make employees redundant during the COVID-19 pandemic?
An employer must adhere to the usual requirements regarding redundancy – that is, the redundancy must be considered ‘genuine’. There are specific criteria surrounding redundancy and it is highly recommended you seek legal advice before going down this path.
There are several other requirements regarding redundancy when the employee in question is receiving the JobKeeper payment.
Can an employer require an employee to take annual leave?
In situations where the employer must shut down its operations and utilise the stand down provisions of the Fair Work Act, the employer can direct the employee to take annual leave (or another form of leave) when an applicable modern award or enterprise agreement permits the direction to be made. Such a direction must be reasonable and adhere to the specific requirements of the workplace instrument.
In situations where the employer is not permitted to direct an employee to take annual leave, the employer and employee can come to a mutual arrangement to do so. The employer should inform the employee that they may be able to access personal leave, annual leave or leave without pay.
If an employee gets infected with COVID-19 at work, is this considered a workplace injury?
Generally, the answer to this question comes down to the nature and circumstances of the infection. There will be many cases where it will be difficult to determine whether the infection actually occurred at the workplace. This will be dependent on the contact tracing results.
If there is a risk that the infection may be a workplace injury, the employer should carefully consider their obligations to report and investigate the infection. The employee may have rights to workers compensation.
If you would like any further clarification or information on COVID-related employment scenarios, get in touch with us for on-point, practical guidance.