While the number of confirmed positive cases of the Coronavirus (COVID-19) (‘coronavirus’) continue to rise, employers need to be ready to step into action if the coronavirus impacts their business.
There are a number of detailed articles currently available aimed at assisting employers to deal with the coronavirus pandemic. Here we provide practical assistance to employers by highlight legal obligations while aiming to minimize the impact on business operations.
What should you do if an employee informs you, they may have Coronavirus?
If an employee attends work and informs you they may have coronavirus (whether they have been travelling or been in contact with someone who has tested positive), you should ensure you comply with the recommendations of the Department of Health and you must ensure you meet your Work Health and Safety(WHS) obligations.
You have an obligation to ensure, as far as is reasonably practicable the health and safety of your workers. This means providing and maintaining a workplace free of risk to health and safety. This obligation requires that you identify risks and do what is reasonably practicable to eliminate/minimise those risks. It should be noted that workers also have obligations under the WHS laws.
We suggest:
- you contact the Department of Health and seek the Department’s recommendation on managing your workplace; and
- You send the employee home and direct the employee to undergo a test for coronavirus and direct them to provide you with a clearance before they return to work.
Do I have to pay an employee if I send them home after they have informed me, they may have Coronavirus?
An enterprise agreement and/or the contract of employment may contain provisions for what you must do in standing-down an employee. So, if an industrial instrument applies to your workplace please check it before taking action, similarly review the individual contract/s to ensure you comply with any obligation in that contract as a failure to do so may be a breach of contract. Additionally, employers should comply with any relevant policy.
There is no general provision in the Fair Work Act 2009 (FWA) which permits an employer to stand-down an employee without pay other than the specific circumstances set out in section 524 of the FWA. But each case turns on its own facts and legal advice should be sought before any action is taken by an employer.
Employers must also ensure they comply with the NES.
What if the employee’s test is negative?
If the employee tests negative to coronavirus it is reasonable for the employer to require proof of the negative result before they are permitted to return to the workplace.
What if the employee’s test is positive?
The National Employment Standards (NES) provides each full-time employee is entitled to 10 days paid personal leave per annum if:
- they are unfit for work because of their own personal illness; or
- to provide care or support to a member of their immediate family or household because of an illness, injury or unexpected emergency affecting the member.
If an employee tests positive they would be entitled to access their accrued paid personal leave. If the employee/s has utilized their accruals of paid personal leave employers may want to allow the employee to access their accrued annual leave or allow leave without pay.
You should ensure you direct the employee to obtain a clearance to return to work from their doctor and that they provide you with that clearance before they return to the workplace.
If I want to pay employees even where they do not have any accruals can I do so?
There is no restriction on employers providing more than the minimum entitlements if they elect to do so. The law prevents employers from paying less than the statutory minimum but not more.
This article should not be considered legal advice. If you have any questions, or have any concerns about your employment obligations, please contact us on (02) 9058-4930.
Nicole Dunn
Lawyer Director
Nicole Dunn Lawyers Pty Ltd