There have been unprecedented initiatives, recommendations and measures undertaken by public authorities in light of COVID-19.
The problem is these have, in some cases, been knee-jerk reactions often based on insufficient information and which may ultimately lead to questionable financial outcomes for both employers and employees.
At the time of writing, many of these measures are still in their planning, development and implementation stages and while well intentioned, employers are beginning to make their own decisions and take their own actions in regard to their business and employees.
What we do know about COVID-19 is that a key control measure to slow transmission is minimising human contact. For employers, this has meant creating directives including having staff working remotely, physically closing offices, cancelling work events and conferences and eliminating staff travel.
So, at the time of writing, it’s important to understand what actions and activities an employer can direct an employee to do and conversely, what employees are required to do as part of these directives.
In this article we will consider some of the more common issues currently presenting themselves, however, do note there are many more and our responses are general in nature only.
We encourage both employers and employees to seek professional advice on their rights in this ever-changing workplace.
A: The answer is, of course, yes. Regardless of COVID-19, employers have an obligation under their respective health and safety obligations to ensure (as much as possible), a safe workplace for their employees. This includes the workplace overall as well as the ‘systems’ an employee uses as part of their work.
In the current COVID-19 world, employers also need to provide up-to-date information about health risks posed by the virus as well as direction or instructions on ways to minimise exposure. In addition, monitor, assess and where possible, mitigate any virus risk in the workplace.
A: In general, yes. If the directive is made solely by the employer and in the absence of any government direction for self-isolation, an employee may be able to refuse. This noted, what we currently know about COVID-19 means it is more than likely an employee will be safer to work remotely given the risk of transmission in a busy workplace.
What is important for employees is that they should be creating or refining their work from home policies to ensure they are appropriate for the current circumstances.
A: The answer is essentially no. If the employee is refusing because of a general concern about being infected, they can’t refuse to come to work. Of course, if there is a known or unreasonable risk to the employee in the workplace, an employee may well have a valid case. Again, we encourage you to seek professional advice before you act.
A: As with many of these questions, there are always areas of grey. If, for example, an employer shuts down operations and its employees cannot usefully be employed – as was the case with Qantas recently – the employer can engage the ‘stand down’ provisions in the Fair Work Act 2009.
In regard to leave, an employer can direct employees to take available leave if there is an applicable award or enterprise agreement in place – again, as with Qantas employees. Where an award or enterprise agreement is not in place, employers can invite or encourage their people to take leave.
Again, we encourage you to seek advice before you act in regard to leave.
A: A pertinent question and the answer is yes. On March 24, 2020, the FWC made changes to the Hospitality Industry (General) Award. While there are many others, some of the key changes (from now until June 30, 2020) include:
Overall, these and many other questions have arisen as a result of COVID-19. In regard to their impact on the workplace, it is also important to remember that these questions, answers and legal outcomes are still very much in in flux as the COVID-19 landscape changes on a daily basis.
We encourage you to seek professional advice on any workplace question you are unsure of – be it COVID-19 related or not – to avoid creating a damaging situation for your company or indeed, yourself.