Legal Alert - Coronavirus and your employment arrangements

The current Novel Coronavirus outbreak is creating challenges on many fronts as governments around the world act to stem the spread of the disease. At the time of writing this, Australia has 14 confirmed cases of novel coronavirus with 165 confirmed exposures to be tested. Whilst those numbers are low, the experience in the centre of the outbreak has provided an indication of how fast the disease can spread. On January 20, there were six deaths out of 282 confirmed cases in Wuhan. By January 28, there were 106 deaths from about 4,500 confirmed cases. By February 6, approximately 24,557 confirmed cases of the virus, and 492 deaths have been reported internationally. With the spread of the disease comes a raft of issues that could affect the way your organisation operates.

Current Australian government advice

As at 6February 2020, the advice from the Department of Foreign Affairs and Trade(DFAT) for travel to mainland China is 'level 4 – do not travel’. This meansthat you should delay any business travel to China until the risk level isassessed by the government as having passed. The following travel restrictionsto people entering Australia, having left mainland China after 1 February 2020,are:

• foreignnationals (excluding permanent residents of Australia) who are in mainlandChina, will not be allowed to enter Australia until 14 days after they haveleft or transited through mainland China
• Australiancitizens, permanent residents and their immediate family will still be able toenter Australia, as well as airline crews who have been using appropriatepersonal protective equipment

Inaddition, the following isolation requirements apply:

• ifyou have travelled to Hubei Province within the past 14 days, you must isolateyourself until 14 days after you left Hubei Province
• ifyou have left or transited through mainland China on or after 1 February 2020you must isolate yourself until 14 days after leaving China
• ifyou have been in close contact with a confirmed case of novel coronavirus, youmust isolate yourself for 14 days after last contact with the confirmed case

Importantly,these requirements apply to students attending childcare, school or highereducation and will mean that parents or carers may have to take carer’s leaveto look after children isolated from childcare or school.

Risks in the workplace

While Stateand Federal governments work to manage and minimise the outbreak, employers arefaced with the dilemma of how to manage the risks and the effects on theiroperations.

We understandthat it takes 14 days for the disease to incubate, so there remains a risk ofexposure in that period. Further, if you have anyone working in your organisationwho has travelled through China recently or who has been in contact withsomeone who has, there will be a risk of your staff and clients being exposedto the disease as was seen recently in a South Australian real estate agency.The media have reported that the agency temporarily closed, with staff sent toself-imposed quarantine after finding out South Australia’s two confirmedcoronavirus victims attended one of their auctions in the last fortnight. Theowners of the agency elected to close the office to minimise any risk to theirstaff, customers and the public until Thursday the 6th February, when they willreassess the situation.

Where can you get information updates?

Forinformation about health and safety in the workplace, go to:

• The Departmentof Health  for the latest information and advice aboutcoronavirus.
• Safe Work Australia for information and referrals about dealing with coronavirus in theworkplace.
• Your State orTerritory workplace health and safety body - for the latest information and advice aboutcoronavirus.

Personal and carer’s leave entitlements in the private sector

Full andpart-time employees who can’t attend work because they are sick can take paid personal/carer’sleave. If an employee needs to look after a family member or member of theemployee’s household who is sick with coronavirus, they are entitled to takepaid personal/carer’s leave.

Casualemployees are entitled to 2 days of unpaid carer’s leave per occasion, whichsimply means that their employment is protected in that period. Full andpart-time employees can take unpaid carer’s leave if they have no paid personal/carer’sleave left.

An employeemust give their employer evidence of the illness or unexpected emergency iftheir employer asks for it. If you require documentation, you should eitherhave that requirement recorded in an existing workplace policy or failing that,let them know when they contact you to advise they will be absent.

Employee is quarantined

The Fair Work Act does not set out rules for these kinds of situations, so employees and employers need to negotiate their own arrangements. Possible reasonable arrangements may include:

• takingsick leave if the employee is not fit for work because of a personal illness;
• takingannual leave; or
• takingany other leave available to them (such as long service leave or any otherleave available under an award or contract of employment).

If an employee doesn’t have sufficient personal leave entitlements to cover their absence, they will need to arrange any other paid or unpaid leave by agreement with their employer. Whilst leave without pay (LWOP) is not an entitlement under the Fair Work Act (the Act), an approved period of LWOP will protect them from dismissal because of their absence. Under the Act an employee’s employment is protected where their absence from work is less than 3 months, in one block or across a 12-month period.

Employee wants to stay home as a precaution

If anemployee wants to stay at home as a precaution against being exposed tocoronavirus, they will need to make a request to work from home (if that is possible)or to take some form of paid or unpaid leave, such as annual leave or longservice leave. These requests are subject to the normal leave applicationprocess in the workplace, but given the urgency of the situation, it isrecommended that employers act swiftly to process leave requests.

It isrecommended that employees who are concerned about their personal risk ofcontracting coronavirus should speak with their doctor urgently for aprofessional assessment of the risks to their health.

Employer wants their staff to stay home

Under workhealth and safety laws, employers are required to ensure the health and safetyof their workers and others at the workplace by removing a risk entirely orminimising its effect as far as they practically can. Workers also haveresponsibilities under the same laws to remove or minimise health and safetyrisks.

If an employeeis at real risk of infection from coronavirus, you should request the employee to:

• seekmedical clearance from a doctor; and
• workfrom home (if possible); or
• notwork during the risk period.

Forexample, if the employee has recently travelled through mainland China, or hasbeen in close contact with someone who has the virus, it may be prudent forthem to be isolated from the workplace until 14 days from their last point ofcontact with the virus.

Under the Act, an employee can only be stood down without pay if they can’t do useful work because of equipment break down, industrial action or a stoppage of work for which the employer can’t be held responsible. The most common scenarios are severe and inclement weather or natural disasters. Where employees can perform work from home or another worksite, they should be instructed to do so. However, because of the nature of this situation, you should seek advice if your situation changes to ensure you remain compliant with your employment obligations.

When anemployer directs a full-time or part-time employee not to work, the employee isentitled to be paid for their ordinary hours while subject to the direction.You should consider your obligations under any award, your contracts ofemployment and workplace policies and plan accordingly before you give aninstruction to an employee to stand down.

Employersneed to balance their legal obligations, including those relating toanti-discrimination, and as such, should carefully consider the broader effectsof the virus on their organisation and its clients.

If you are concerned that you organisation may be affected by the Novel Coronavirus and you are unsure about how to manage the situation, our team can provide advice and draft documents to ensure that you remain compliant with your obligations. You can contact us on (07) 3160 0010 or at michelle.cowan@nfplawyers.com.au  

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The material distributed is general information only.
The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should  seek legal or professional advice in relation to your specific situation.