Article By: Sarah Cappello Cappello Rowe Lawyers Sydney

The reporting of the 2019 novel coronavirus (COVID-19) has caused increase anxiety and disruption for many organisations and their employees. The challenges associated with this, including absenteeism by employees is a difficult situation for all. The current circumstances demonstrates the importance for employers to proactively manage and respond to illness at work.

The Coronavirus

As has been reported, COVID-19 is a virus that is spread in a similar way to the flu, and people may catch the virus by touching contaminated surfaces or objects and then touching their eyes, nose or mouth. If a person is standing within one meter of another person with COVID-19 they can catch the virus by breathing in droplets coughed out or exhaled by them.

Most persons infected with COVID-19 experience mild symptoms (fever, cough, shortness of breath, sore throat and sometimes a fever) and ultimately recover. However, some go on to experience more serious illness and may require hospital care. Risk of serious illness rises with age: people over 40 seem to be more vulnerable than those under 40. People with weakened immune systems and people with conditions such as diabetes, heart and lung disease are also more vulnerable to serious illness.

What should employers do?

Employers have a duty under work health and safety laws to provide information to employees about health and safety in the workplace. It is imperative for employers to provide regular updates to their employees about the status of COVID-19 that are consistent with information being provided by the Department of Health and the WHO.

It is important for employers to provide updates to their employees addressing:

1. The current status of COVID-19 in Australia (to clarify the situation and dispel any myths);
2. Advice on good hygiene practices for work and home.

General hygiene precautions

The WHO has identified the following measures to prevent the spread of COVID-19 in the workplace which include:

1. Washing your hands thoroughly with soap and warm water or with an alcohol-based hand sanitizer.
2. Keeping your hands and fingers away from your eyes, nose, and mouth.
3. Avoiding close contact with people who are sick.
4. Covering your cough or sneeze with a tissue, then throwing the tissue in the trash and washing your
5. If tissues aren’t available, coughing or sneezing into your flexed
6. When wearing a face mask be sure to cover both your mouth and nose – avoid touching the mask once it’s on.
7. Cleaning and disinfecting frequently touched objects and
8. If any employee has cold-like or viral symptoms, it is strongly suggested that they stay home during this sickness and for medical attention to be sought immediately, as well as avoiding close contact with others.

Further to the measures that should be taken by employees, workplaces should also:

1. Display signage reminding employees to wash their hands regularly and thoroughly.
2. Consider installing hand sanitiser dispensers in bathrooms, meeting rooms and high pedestrian areas such as reception.
3. Employees who share equipment such as phones or laptops should wipe down this equipment with a sanitising wipe after use.

What are employers’ obligations if employees are unable to work?

Statutory entitlements

Full time and part time employees who are unable to work because of illness can take paid sick leave. If the employee needs to look after a family member or member of their household who is sick, or suffering from an unexpected emergency, the employee may be entitled to take paid carer’s leave. If the employee’s leave entitlements are exhausted, the employee may wish to consider other alternatives, such as taking annual leave or alternatively leave without pay. Employers should request a medical clearance prior to the employee returning to work.

If an employer has a leave policy in place, it is important that this policy be communicated to employees and enforced accordingly.

Stand down provisions

The Fair Work Act 2009 (FWA) also provides that employers have a right to stand down employees in certain circumstances such as being unable to do useful work due to equipment breakdown, industrial action or a stoppage of work for which the employer cannot be held responsible. Modern awards, enterprise agreements or employment contracts may also contain stand down provisions and generally such periods are unpaid. It is important for the employer to consider this position carefully and it is important to seek legal advice prior to relying on any stand down provisions.

Working from home

Requests for flexible working arrangements form part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract. The NES include a right for certain employees to request flexible working arrangements from their employer in certain circumstances and may include a request to work from home or another location.

Such a request must be made in writing and set out the details of the change sought and reasons for the change. An employer must give employees a written response to the request within 21 days, stating whether the request is granted or refused. Importantly, employers may refuse the request only on reasonable business grounds, and if it is refused, the employer must provide a written response including the reasons for the refusal.

Given the increasing impact of covid-19, employers and employees should negotiate their own terms regarding leave or flexible working arrangements in order to facilitate an effective and efficient working environment. Where possible, employers should attempt to reach agreements with employees rather than directing them to take action which may be in breach of the FWA or any other legislation.

Employers ought to have a policy or other provisions in place to enable flexible arrangements.

Discrimination risks

Reports are emerging that COVID-19 is leading to incidents of racist or prejudiced behavior towards individuals. Firstly such behavior is illegal, and further, is detrimental to an organisations culture and values. Employers should be careful to balance their health and safety obligations to ensure the health and safety of all employees against the risk of unlawful practices of discrimination or harassment.

Employers may be vicariously liable for the conduct of their employees who discriminate or harass other employees, unless they are able to demonstrate that reasonable steps had been implemented to avoid such conduct. It is for this reason why employers must have appropriate policies in place in order to eliminate the associated risks of unlawful discrimination or harassment in the workplace. 

If you would like more information or require further advice, please do not hesitate to contact us on 02 8325 1520 or alternatively email info@cappellorowe.com.au