COVID-19: What to do with your employees?

I have been inundated in the past week with calls from many clients regarding COVID-19 (Coronavirus) and its impact on the business. Including relating to employees, leases, supply chain, store closures…..the list goes on! I thought it would be useful to get on the front foot and publish a few helpful articles about how to deal with Coronavirus.

I will be publishing some articles regarding employment, publications you can send your stores and staff, an action plan for head office use and anything else that might be useful in the retail ecosystem.

As Australia continues to battle the spread of COVID-19, also referred to as Coronavirus, retailers are increasingly concerned with what safety precautions they are entitled to take to provide a safe environment for their employees.  Retailers are the second highest employer industry in Australia. There are a number of employment and safety issues that retailers need to consider to help inform and frame their decision making in this unfamiliar environment.

Governing Laws

The Occupational Health and Safety Act 2004 (Vic) prescribes a duty of care owed by employers to its employees to, provide a safe and healthy working environment.  In compliance with these obligations, employers must exercise reasonable care such that their acts or omissions do not adversely impact the health and safety of their employees.

If an employer concludes, on a reasonable basis, that an employee may pose a health threat to other employees and is therefore not fit for work, the employer can request that the employee stay home until they are able to provide a medical clearance from a doctor. A ‘reasonable basis’ can include that an employee has recently travelled through China, Iran, Korea or Italy as deemed by the Department of Health to be high risk areas or if they have been contact with someone who has contracted Coronavirus.

I know that this can be really tricky in the retail space given that many of the jobs simply cannot be done from home (how can a store manager work remotely)? However, despite the challenging nature of this situation its important to remember that employers still need to comply with their legal obligations to their employees.

Entitlements during quarantine

Pursuant to the Fair Work Act 2009 (Cth) (FWA), employees are required to follow the lawful direction of an employer. Therefore, if a part-time or full-time employee is required to remain at home at the direction of their employer for the 14-day quarantine period, they are ordinarily entitled to be paid their ordinary base rate of pay. This base rate of pay should be paid until such period of time as they are declare unfit for work, which will generally require they take sick leave, or return to work.

An employer may request that an employee take unpaid or sick leave but cannot compel them to do so. We note however that this may breach the National Employment Standards (NES) to the extent the employee is using up their personal leave entitlement where they are not in fact ill.

According to the Fair Work Ombudsman, in the most extreme circumstances an employee can be stood down without pay for reasons beyond the employers control and responsibility (such as inclement weather or natural disasters) but has not provided any further clarity.

Where an employee has contracted coronavirus or voluntarily wishes to self-contain beyond the direction of their employer, they will need to access leave entitlements, which will be dependent on their employment arrangement, employment contract, applicable award or enterprise agreement. Leave requests, including working from home requests, will be subject to ordinary application processes in the workplace.

What if an employee refuses to come to work because they are concerned about their safety?

If employees refuse to attend work or undertake work related activities as a result of the potential exposure to coronavirus, the employer is not required to provide them with any payment or provide them access to leave, unless the employee is acting consistent with the governments’ advice.  Depending on the context of the employment arrangement, a failure to attend work may result in disciplinary action if the direction is lawful, reasonable and does not place the employee in any risk.

Can employers restrict employee’s non-work-related travel?

Employers ordinarily have little influence when concerning an employees non- work related travel plans. If employees intend to travel to places that are contrary to the Australian Government’s recommendations and known to be high risk, employer may inform employees of the associated risks. The employer may also advise employees that when returning from travel, an employee is expected to feel well and fit to return to work or otherwise seek medical advice.  Beyond this, any obstruction on annual leave entitlements may be in breach of the National Employment Standards in the FWA.

Discrimination laws

As the fear and anxiety surrounding the spread of coronavirus worsens, there is emerging concerns regarding discrimination against people of a particular ethic background or perceived to be of an ethnic background.  Australian anti-discrimination laws under the Equal Opportunity Act 2010 (Vic) and the FWAremain in effect. Employers should exercise caution not to make assumptions based on an employee’s characteristics that are protected under these laws. This should be considered when creating preventative measure policies, prohibiting employees from homing to work, or asking questions about an employee’s travel and contact.  Employers should be aware of any conduct that may be unlawful even if has arisen out of a genuine fear regarding the coronavirus. Employers also have a duty to ensure that they have taken all reasonable steps to prevent their employees from behaving unlawfully towards both other staff, but also customers or clients.

Workers compensation claims

If an employee can demonstrate that they have contracted Coronavirus at work then they may be eligible for a claim of compensation. For this reason its important that retailers do everything within their power to educate their team members about the best practice for health, hygiene and dealing with customers.

We will be sending out the following this week:

  1. Coronavirus communication that you can send to your team members to assist them with these practices.
  2. Action plan in the event that you have a team member exposed to or infected with Coronavirus.

If you would like to know how we can help you, please do not hesitate to contact us at rosalyn@gladwinlegal.com.au or give us a call on 1300 033 934.

The content in this article is current as at the date of publication, however the severity and government response in relation to COVID-19 situation is changing rapidly. It is your responsibility to keep up to date with the situation regularly and seek professional advice.