The outbreak and rapid spread of a novel corona virus, COVID-19, is throwing up all sorts of dilemmas for businesses – with a spotlight on business continuity planning.

As the Fair Work Act 2009 (Act) does not include specific provisions dealing with epidemics or pandemics, working out how to manage your workforce in a manner that is safe, lawful and financially viable can be tricky.

In this blog, we take a look at three of the issues that many of our clients are navigating with respect to managing their employees.

1. Use of sick leave and quarantine measures

An employee can (of course) avail themselves of their accrued sick leave if they take time off work due to being ill with the novel corona virus.

But what about where an employee is in quarantine solely because of exposure to the virus and government imposed isolation rules?

Technically, an employee is not entitled to take sick (personal) leave under the National Employment Standards unless they are taking leave due to a personal injury or illness.

On a practical level, however, it makes sense to permit an employee to use accrued sick leave, or to allow them to work from home (where feasible), during such a quarantine period.

Alternatively, during a period of (government imposed) quarantine, an employee may be able to avail themselves of:

• annual leave
• long service leave
• carer’s leave (e.g. where caring for a member of their household or immediate family who is ill or dealing with an unexpected emergency), or
• unpaid leave – as agreed with their employer.

Always be sure to check any applicable modern awards, enterprise agreements, employment contract terms and company policies – as they may contain additional rules or entitlements.

2. Directions not to attend work, stand downs and business closures

“We are directing you not to attend work ….”

If an employer directs an employee not to attend work, despite them being fit and able to do so, the default position is that employees must continue to get paid. For example, some organisations are imposing company-specific quarantine requirements on all employees who return from overseas, not merely those returning from destinations in respect of which there is government ordered quarantine. [Stop Press: The Australian Government has subsequently ordered all overseas arrivals to self-isolate for 14 days, effective for those arriving on or after 16 March 2020 – as such, for the time being employers will no longer need to issue such a direction for returning travellers, but might still issue proceed to issue directions not to attend work in other circumstances.]

In this situation, it’s important to check whether you can simply issue this direction (e.g. pursuant to the employee’s contract) – or whether you need employee agreement. (Again, check any applicable industrial instruments, contract terms and company policies – and seek specific advice.)

“We are standing you down…”

The Act contains stand down provisions that permit employers to stand down an employee during a period in which the employee “cannot usefully be employed” because of a number of circumstances, including “a stoppage of work for any cause for which the employer cannot reasonably be held responsible.” (The other circumstances are industrial action and breakdown of machinery or equipment.)

But, the stand down provisions in the Act only apply when an employee’s employment contract and enterprise agreement don’t contain stand down provisions that deal with the same circumstances.

The regulator – the Fair Work Ombudsman – has stated on its website that:

• employers can’t stand an employee down just because the business is quiet or there isn’t enough work;
• the most common scenarios where there is a stoppage of work for which the employer “cannot reasonably be held responsible” and staff “cannot usefully be employed” are severe and inclement weather or natural disasters.

In our view, the COVID-19 outbreak could result in a situation that meets the requirements for stand down under the Act – i.e. it may not be an instance of business merely being “quiet”, but an entire department, office or operation being closed down due to quarantining of the workforce or the business’ customers, for example.

In the event of a valid stand down under the Act, an employer does not need to pay wages to stood down employees, but an employee accrues leave in the usual way. Importantly, an employee is not taken to be stood down during a period when he/she:

• is taking paid or unpaid leave that is authorised by the employer, or
• is otherwise authorised to be absent from his/her employment.

For example, an employee may be able to take paid leave (e.g. annual leave) during all or part of a period during which the employee would otherwise be stood down (subject to their leave balance being sufficient).

“We are closing our business …”

In some circumstances, an employer can close down their business and direct employees to take their accrued annual leave.

Typically, this occurs at Christmas or due to machinery upgrades etc – but an epidemic or pandemic could prompt a temporary close down.

For award- and enterprise agreement-free employees, the Act stipulates that the direction to take annual leave must be reasonable – and there may be relevant terms in contract or policy too. Otherwise, check any applicable industrial instruments too.

3. Workplace health and safety obligations

Employers have a duty to provide and maintain, so far as is reasonably practicable, a working environment that is safe and without risks to the health of employees. This includes identifying risks to health or safety associated with potential exposure to COVID-19 – and taking measures to control these risks.

Employers are taking various measures to the control the health risks to their workforces, including:

• providing adequate facilities to enable good hygiene practices (e.g. soap, hand sanitiser, signage and reminders)
• limiting or banning non-essential travel
• developing infection control policies and procedures
• directing employees to obtain medical clearance and comply with quarantine measures, particularly following travel to high risk locations

The Department of Health has published an information sheet for employers; as the situation and corresponding medical advice is constantly changing, it is critical that employers keep up to speed with the latest information. Specific advice should be sought and the steps that your business should take will vary depending on factors such as the nature of your business and the locations of your operations.

This is general advice only, is current as at 10 March 2020 and may not be applicable to your organisation or situation. Liability limited by a scheme approved under Professional Standards Legislation. © 2020 Toop Workplace Law Pty Ltd