These are certainly unprecedented times, employers and employees must work together to manage the risks associated with the coronavirus (‘COVID-19’) in the workplace. Measures to reduce the spread will require co-operation and compliance with Federal and Queensland Government (‘Government’) directives and restrictions. We encourage all employers to regularly review the following websites for updates and more comprehensive information:
Federal Department of Health www.health.gov.au ; and
Queensland Government www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19
By now, we are all aware of what COVID-19 is and the symptoms that people need to be mindful of, so we have chosen not to repeat that information here for you. However, we will remind employers that employees experiencing any flu like symptoms, and in particular symptoms relevant to COVID-19, have a duty of care to notify their employer and not attend work – and it is important that you make this very clear to your employees.
We have discussed below, what other obligations apply to the workplace in order to provide some clarity in these uncertain times.
An employee must self-isolate for 14 days if they have:
- been in close contact with a confirmed case of COVID-19;
- arrived in Australia after midnight on 15 March 2020; or
- arrived in Queensland from another State or Territory of Australia after midnight on 25 March (there are exemptions to the Queensland border restrictions, including for ‘persons travelling to and from work’ with the police currently developing methods to identify vehicles in border communities to make frequent essential border crossings easier – such as a permit.)
Employers must ensure that employees do not attend work during any quarantine period. If they can work remotely from their home or place of quarantine, then it is recommended that they be allowed to continue working and being paid during their absence.
General hygiene and the workplace
Employers should remind employees of the importance of personal hygiene to reduce the spread of COVID-19, which includes reminding employees to:
- Clean their hands regularly with soap and water or alcohol-based hand rubs;
- Cover their nose and mouth with a tissue or bent elbow when coughing or sneezing;
- Avoid touching their face, nose and mouth;
- Stay at home if they are unwell; and
- Provide alcohol-based hand rubs in the workplace where possible.
Social distancing in the workplace
Social distancing has been identified as the key to slow the spread of COVID-19. Employers must implement workplace measures consistent with Government recommendations, for example:
- Distance between team members and any clients/customers is to be 1.5 metres;
- Stop handshaking or any other physical contact as a greeting;
- Stop face to face meetings, appointments etc and move to video conferencing or a telephone conference where possible; and
- Limit food handling.
Government social restrictions
Initial Government social distancing restrictions were announced on 18 March 2020 which included:
- No non-essential gatherings of more than 500 people outside;
- No more than 100 people inside;
- All non-essential indoor gatherings of less than 100 people must have no more than one person per 4 square metres;
- Where possible, keep 1.5 metres between yourself and others;
- Avoid non-essential travel; and
- Restrictions on entering aged care homes to protect older Australians.
At midday on 23 March 2020 further Government social distancing restrictions (stage 1) became effective which include the closure of the following facilities:
- Registered and licenced clubs (excluding bottle shops attached to these venues);
- Hotels (excluding accommodation);
- Gyms and indoor sporting venues;
- Cinemas, entertainment venues, casinos, and night clubs;
- Restaurants and cafes will be restricted to takeaway and/or home delivery; and
- Religious gatherings, places of worship or funerals (in enclosed spaces and other than very small groups and where the 1 person per 4 square metre rule applies).
Stage 1 restrictions are likely to have a significant effect on many employers and employees and may result in employees being stood down or having their employment terminated due to their position being redundant. The issues surrounding this at this time are complex legal issues and we strongly recommend that Employers get legal advice before taking any action.
Stand down provisions
The Fair Work Act 2009 (Cth) (‘FWA’) contains stand down provisions allowing an employer to stand down an employee if the employee cannot be usefully employed due to a stoppage of work for a cause the employer cannot be held reasonably responsible.
Employers may be able to utilise the provisions contained in the FWA in circumstances where Government directives close all or part of the business, or where there are direct consequences for a business as a result of Government directives to clients of the business (supply chains and clear associated contractual relationships) which result in a stoppage of work.
There may also be other circumstances where the stand down provisions can be used – but stand down provisions need to be carefully assessed on a case by case basis before applying them, and employers must also consider all relevant industrial instruments such as awards, enterprise agreements and contracts of employment.
When the stand down provisions were drafted, consideration was not necessarily given to impact of a worldwide pandemic. Because of this, the stand down provisions can be technically difficult to interpret when applying them to the effects of COVID-19 on a workplace. Accordingly, legal advice is essential.
Every employer should be currently assessing their business for a potential general lockdown and the consequential potential use of the stand down provisions in the FWA, including the flow on implications to employees. If you are uncertain about this, please contact one of our lawyers who are here to answer your questions.
Working from home
Directing or agreeing with an employee to work from home is an effective way to implement social distancing in the workplace and/or to relocate employees who can continue to be usefully employed if your business is required to shut down.
In accordance with the Work Health and Safety Act 2011 (Qld), employers are required to ensure a safe work environment for employees, including working from home environments. Employers are obliged to ensure a documented risk assessment is conducted of the proposed work environment in the employee’s home. Employers should consider the most effective risk assessment approach. Having a Working from Home Policy in these instances can always assist. If you do not already have a Working from Home Policy we recommend that you put one in place if you believe your workplace, or some of your employees, will eventually be working from home. Aitken Legal can assist you with this policy.
Employers must also take out an accident insurance policy with WorkCover Queensland where they are having employees working from home.
Workplace Health & Safety
All employers have an ongoing obligation to do everything reasonably practicable to ensure the health and safety of employees and others in their workplace. As mentioned above, this obligation continues where employees are working from home.
Where employees continue to attend the workplace, employers have an obligation to put in place measures for social distancing and hygiene and to remove or manage any risks so as not to expose employees unnecessarily to the risk of contracting COVID-19.
Safe Work Australia has specific advice for employers regarding COVID-19. This information and guidance tool can be accessed at www.safeworkaustralia.gov.au.
Annual and long service leave entitlements
Employers and employees may agree that the employee can take some or all of their accrued entitlement to annual leave or long service leave (‘leave entitlements’). An employer must not direct an employee to take leave entitlements unless it is done in compliance with threshold requirements and notice provisions in the relevant industrial instrument or contract of employment. Many of these threshold requirements or notice provisions require legal advice so employers should not hesitate to seek that advice.
The Government has announced widespread support measures and payments, particularly financial support for COVID-19 affected workers and job seekers. Employers should refer employees affected by COVID-19 to www.servicesaustralia.gov.au.
Aitken Legal will regularly update and alert employers as information becomes available. This information is changing frequently as new measures are put in place. The issues that COVID-19 and the Government restrictions bring to the employment relationship are complex legal issues. We strongly recommend that employers take a considered approach; review all available information and seek legal advice from our employment lawyers before acting, so as to minimise their risks.
Disclaimer: The information contained this article is general and intended as a guide only. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this update, Aitken Legal does not accept liability for any errors it may contain. Liability limited by a scheme approved under professional standards legislation.