FAQs COVID-19 | NECA

FAQs COVID-19

1. What do we do if an employee contracts Coronavirus?

Employees who are sick with the virus cannot attend the due to Work Health and Safety obligations of the employer. Employers may direct employees who are sick with the virus not to come to work and to get a medical clearance from a doctor prior to returning to work. This can be done as long as the employer is acting reasonably and based on factual information about health and safety risks (such as the Australian Government’s health and quarantine guidelines).

In this case, permanent employees can take paid personal leave. An employer cannot force an employee to take sick leave, however the employee would not be entitled to be paid unless they use their paid leave entitlements.

2. What if my employee does not have any accrued personal leave?

If your employee has no personal leave accrued then the employee will then be classed as taking unpaid leave. However an employer can offer an employee to use annual leave, RDO’s or long service leave (if available). Where a company decides to provide special leave, other discretionary arrangements or offer ex-gratia payments, the company should clearly communicate that this has been provided at the employer’s discretion and is exclusively based on the current situation.

3. What do we do when an employee has been in contact with or living with someone in self-isolation?

If an employee is required to be quarantined, due to close contact with an affected person, they may be entitled to any of the following:

  1. working from home, if practical for your workplace;
  2. taking sick leave if the employee becomes sick;
  3. taking annual leave;
  4. taking any other leave available to them, such as RDO’s or long service leave; or
  5. arranging any other paid or unpaid leave by agreement between the employee and the employer.

If an employee wants to stay at home as a precaution, but is not directed by the employer or as a result of a government order, they will need to come to an arrangement with their employer that best suits their workplace, such as working from home or taking annual leave or other leave entitlements that are available to them.

If the employer directs the employee to stay home as a precaution, as the employer believes the employee may be at risk, employers should request the employee works from home (if practical). Where an employer directs a permanent employee not to work due to WHS risks, but the employee is ready, willing and able to work, the employee will generally be entitled to be paid while the direction applies.

If an employee cannot work because they are subject to a government order requiring them to self-isolate, the employee is entitled to annual leave or other leave available to them.  The employee will not ordinarily be entitled to personal leave unless they are sick.

If should be noted that employees can only be stood down with no pay under the Fair Work Act 2009 (FW Act) if they cannot be usefully employed because of equipment breakdown, industrial action or a stoppage of work for which the employer cannot be held responsible. Please note that employees cannot be stood down indefinitely and if it is clear that a position has become redundant, the employer is obliged to comply with legislative, Award and contractual obligations in relation to redundancy.

4. Is it the employer’s responsibility to direct an employee to self-quarantine, or is that a voluntary act? 

It is the employer’s duty under WHS legislation to prevent a risk of infecting other employees. In certain circumstances, it is a lawful direction from the Health Department under the Biosecurity Act and must be complied with. Refer to the Australian Government Health Department website for the latest COVID-19 resources, including requirements for self-quarantine.

5. An employee attends work and advises that they have a sore throat, they have spent the weekend with a relative who has just returned from overseas. The relative has been directed to be tested for coronavirus but no results are available yet. Are we able to send the employee home and how are they to be paid?

The Employer should send the employee to a hospital or applicable health unit for a medical clearance. This time is to be treated and paid as ordinary work time. If the employee is not cleared to return to work and therefore found to be unfit for work, they would be paid from their personal leave balance until this entitlement is exhausted. At this point, the employer and the employee may consider use of annual leave, RDO’s or long service leave, where possible.

​​6. Can I send employees to a site if there is possible exposure to COVID-19 at that site or building?

In accordance with your Work Health and Safety obligations, prior to sending your employee to perform work in another location, you should make reasonable enquiries with the client to confirm to the best of their knowledge, whether they, or anybody at the site or building, have been in close proximity or in close personal contact with anyone suspected or confirmed to have COVID-19.

If the answer is no or that the site has been cleared as decontaminated and assuming you have the correct controls in place, it will be suitable to send your worker to a site or building.

7. What to do if the Government shuts down your business

You should allow the employee to work from home (if applicable) or stand employees down pursuant to the FW Act. During a stand down, employees would not be entitled to pay, however you can offer them to take paid leave such as annual leave, RDO’s or long service leave.

If the industrial instrument that governs your employees provides for stand down, this is most likely to take precedent over the provisions of the FW Act.

When standing employees’ down under the FW Act, you must ensure that you exercise caution. Seek advice about your specific circumstances to ensure that you are not breaching your legislative obligations.

8. What if my child’s school is closed due to concerns about the virus?

Employees who cannot come to work because they need to care for a child as a consequence of a school closing will not ordinarily be entitled to carer’s leave entitlement, unless the child is ill.

Paid carer’s leave is available to permanent employees where the employee needs to look after a family member or a member of their household who required care or support because of a personal illness or unexpected emergency.

A school closing on short notice and for a short period of time due to concerns about the virus may be considered an unexpected emergency. Seek advice about your specific circumstances to ensure that you are not breaching your legislative obligations.

Other arrangements may include:

  1. working from home (if possible) or other flexible working arrangements;
  2. taking annual leave;
  3. taking other forms of leave etc.

9. Can we force people to take unpaid leave and what would the impact be?

An employer can only direct an employee to take annual leave in some situations. This will usually be set out in the industrial instrument governing the employee’s employment. Generally speaking though, an employer would likely only be able to force leave in the following circumstances:

  1. the business is closed during the Christmas and New Year Period; or
  2. an employee has accumulated excess annual leave.

Under the Electrical, Electronic and Communications Contracting Award excess leave is where an employee has accrued more than 8 weeks paid annual leave or 10 weeks paid annual leave if they are a shift worker.

In most cases, an employer would need to give the employee notice (usually 4 weeks). 

10. Can you make an employee redundant due to the coronavirus and the expected downturn in work?

The answer is yes, but Employers are urged to treat this as the worst case scenario, particularly in circumstances where we do not know how long the virus will continue.

Employers should take all steps, such as paid leave, stand down etc, prior to initiating a redundancy. Further, there are three specific requirements that must be met for a genuine redundancy. If these thresholds are not met by the employer, it is highly likely that the employer will see unfair dismissal claims. Employers should seek advice about their specific circumstances.

In addition, if an employee needs to make employees’ positions redundant in response to a business downturn, they may have to pay redundancy pay, together with providing a notice period or payment in lieu of notice.

11. How do I meet current business contract obligations if employees are quarantined and not able to come to work?

Typically a force majeure provision will relieve an affected party that is prevented or delayed from performing its contractual obligations due to an event that is not within its reasonable control, where the affected party is not reasonably able to prevent or overcome the event. To determine if COVID-19 constitutes a force majeure, it will depend on the contract terms and the circumstances.

If a party is prevented or delayed from performing contractual obligations due to COVID-19, the company should analyse their contractual obligations and whether they can:

  • suspend performance;
  • seek to vary the terms of the contract; or
  • terminate the contract entirely.

 

In absence of a force majeure provision, or if the definition excludes a pandemic, a business should review other provisions of the contract, such as any termination for convenience or variation provisions. At its most extreme, a party may argue that the contract is frustrated altogether and the parties discharged from their contractual obligations.  

Much will depend upon the particular circumstances but employers should make efforts to minimise the impact of COVID-19 on their businesses:

  • Closely monitor the Department of Health website for updates on COVID-19 and follow all directions from government. Do risk assessments to ensure what is known (or what reasonably ought to be known) about the risk to employees as well as review infection controls such a good hygiene and social distancing to ascertain if they remain effective. 
  • Ensure employer mandated isolation or stand down decisions are based on reasonable safety concerns, directions from the Health Department or genuine business requirements and are not based on discriminatory or unlawful reasons, which could expose the company to risks of adverse action or discrimination claims.

 

Disclaimer: This summary is a guide only and is not legal advice. For more information on legislative or contractual obligations, call NECA Legal on 1300 361 099 or email law.clerk@neca.asn.au.  

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