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Managing employees in the Coronavirus (COVID-19) emergency (Australia)

Andrew Tobin, Alana Paterson, Damon King, and Adele Garnett / 16 March 2020
14 min.
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Worthwhile read for: COO, CEO, Board, HR Managers, HR Professionals

We will update this material as required. Please do not hesitate to contact our Workplace and Employment team for more specific guidance or assistance.

The COVID-19 situation is continually changing and evolving, as such the information in this alert is current as of Monday 16 March 2020.

Essential background

While the scientific knowledge around COVID-19 is accumulating rapidly, it is a newly discovered virus in humans presenting uncertain health risks for which there is no vaccination or specific treatment therapies. It is contagious, has spread rapidly across the globe and can be fatal, with an uncertain mortality rate for which estimates vary significantly (ranging from less than 1% to 20%). Deaths are highest in the elderly, with very low rates among younger people. 

As an employer you are legally obliged to contain the risks to health and safety, in the course of your business operations, presented by COVID-19 infection by seeking to ensure, as far as reasonably practicable, the health and safety of:

  • your workers (employees, contractors, volunteers); and
  • third parties exposed to your business operations (clients, customers, patrons, bystanders).

Criminal penalties apply for breach of those obligations.

Civil liabilities might also arise to your workers and third parties who are infected, or affected/damaged as the result of infection, caused by your failure to take reasonable care to prevent the risk of infection (negligence).

There are three elements to managing the risks:

  1. maintaining appropriate levels of hygiene;
  2. employing appropriate levels of social distancing (including by isolation of people with infection or suspected infection); and
  3. the medical response to infections and suspected cases.

At all levels you will also need to do your best to manage the ‘people factor’. In its simplest form this will involve an empathetic approach to the management of people adversely affected by the crisis, whether medically, socially or economically. At a more sophisticated level it could involve the provision of suitable support services e.g. by access to a formal employee assistance program providing psychological support services to your workers and their families.

Essential preparation and maintenance

Unless you are a medical service provider, most businesses will be primarily concerned with maintaining organisational hygiene and enforcing suitable standards of social distancing.
A rough checklist of how to go about both includes the following:

  1. Get and keep up to date.

Identify some reliable resources and consult them regularly for information about COVID-19 risks and issues and how to manage them. For example:

  1. Armed with that information, workshop the risks most likely to arise in your business operations and identify:
  • Things you can do proactively; and
  • Things you will do reactively in particular fact situations.

See below, What are others doing to manage the risks and to prepare for contingencies? for examples.

  1. Do the proactive things.
  2. Prepare as best you can to do the reactive things if/when the need arises. Write up an action plan of what will be done by whom to address particular scenarios; resource the detail appropriately (who will do what and when) and circulate the detail to those responsible to put it into action.
  3. Revisit, revise and update the plan as often as appears necessary while the crisis is ongoing. 

What are others doing to manage the risks and to prepare for contingencies?

Specific examples include:

  1. As part of your business continuity plan, develop a system for communicating with your staff 24/7 in relation to relevant risks and issues and in relation to business continuity arrangements. Possibilities include by group text message, Facebook and email.
  2. Ensure that your organisation and the people in it are observing recommended standards of hygiene.

Circulate/publicise informational material to your staff that might assist. Resource the exercise as needed with sanitary and cleaning products and cleaning services;

  1. Inform yourself and your staff about the signs and symptoms of COVID-19 infection.

They include fever, cough, sore throat and shortness of breath. Other early symptoms can include chills, body aches, headache and runny nose, muscle pain or diarrhoea.

Ask your staff to self-identify/report signs of potential infection and actively manage (see below, Management of impacted employees) those who report potential infection.

  1. Inform yourself and your workforce about the known risks of infection as that information becomes available from the authorities. According to the reported science at the time of writing:

(a)    A person with the virus can be infectious before showing symptoms and for an indeterminate period after recovery. The virus appears to have an incubation period of between five and 14 days after exposure and before symptoms appear. The risk of an infected person passing on the virus to a close contact (see below, 4c) appears to be very low until the 48-hour period before they become symptomatic.

A person who has contracted the virus and is not symptomatic is unlikely themselves to be infectious until, at the earliest, about the third day after their own exposure.

However, it would be prudent to seek specific medical advice about the risk of infection in individual situations.

(b)    COVID-19 spreads from person to person in a similar way to the flu:

(1)    from close contact (see below, 4c) with an infected person (this appears to be the primary risk of infection); and
(2)    from touching objects or surfaces contaminated by the sneeze or cough of an infected person and then touching your eyes, nose or mouth.

(c)    A close contact is someone who has been face to face for at least 15 minutes or been in the same closed space for at least two hours, as someone who has tested positive for COVID-19 when that person was infectious. 

The current scientific consensus is that this virus can be spread within two metres if somebody coughs. Otherwise, the droplets fall to the ground and don’t infect you.

(d)    The virus can survive up to nine days on some industrial surfaces (metal, ceramics and plastics). That means things like doorknobs, tables, handrails, desks or lift/elevator buttons. 

  1. Seek to identify workers at high risk of infection and, where appropriate, ask or direct them to self-isolate in accordance with Government advice/directives e.g.,

(a)    workers who have come into close contact (see above, 4c) with people diagnosed with the virus;
(b)    workers who have recently travelled internationally; and
(c)    workers who have come into close contact with people in either of these categories, including via people with whom they live (partners, housemates, children) and/or for whom they have caring responsibilities.

Communicate with your staff in relation to the risks, ask them to self-identify/report and actively manage those who report potential exposure (see below, Management of impacted employees).

The currently recommended self-isolation period is 14 days, unless symptoms appear (in which event further medical advice should be sought).

  1. Set up a system to assess the infection risks presented by workers who call in:

(a)    sick; or
(b)    to take carer’s leave to care for someone who is sick;

from whatever cause, before permitting them to return to work. Enforce a suitable period of exclusion from the workplace in high risk cases, subject to production of a medical clearance (see Management of impacted employees).

  1. Ask your staff to reconsider their involvement in personal activities outside work that involves unnecessary air travel (both domestic and international) or social interactions. Social distancing will be the community’s most important defence to the virus.
  2. Advise your staff that you expect them to observe, both at and outside work, all recommendations/directions by public authorities in relation to the maintenance of personal hygiene and social distancing. Keep them informed about all such notifications and recommendations.
  3. Establish and maintain standards for appropriate social distancing where possible in your direct business operations by avoiding personal interactions which are unnecessary. Examples include:

(a)    limiting non-essential organised gatherings;
(b)    limiting face to face meetings and using virtual meeting tools instead (phone or videoconferencing);
(c)    cancel/postpone unnecessary air travel;
(d)    asking or allowing staff to work from home where that is practical and safe; and
(e)    asking your clients, customers, patrons etc. not to seek unnecessary personal interaction with your workers or visit your premises. Add this to your normal communications with your stakeholders e.g. in email footers and on your website.

Management of impacted employees

Your right to direct staff

As an employer you have the legal right to direct your employees in reasonable and lawful terms in order to manage health and safety risks. This will include requiring people to stay away from work to manage infection risks or to ensure compliance with recommendations/directions by public authorities.

COVID-19 testing and medical clearances

In some, but not all, cases it may be possible for individuals thought to be at risk of infection to obtain a medical clearance to return to work, on the basis that they do not, in fact, present an infection risk.

Our experience to date is that:

  • testing is not being offered or made available except in predefined circumstances (e.g. potential exposure to a confirmed case of COVID-19);
  • absent those circumstances, some doctors will certify employees, variously, as fit for work, uninfected by COVID-19 and/or as not requiring testing;
  • employees in either of those situations seeking a test to support a medical clearance to return to work may simply be unable to obtain a test-based clearance – they may be required to self-isolate, without symptoms, for 14 days;
  • testing is not determinative for people who are not symptomatic. Employees who have had potential exposure, who are not symptomatic and who return a negative test may still be required to complete a 14-day period of self-isolation without symptoms; and
  • presently it is uncertain when a person recovering from COVID-19 infection ceases to be infectious. Further medical advice should be sought in relation to people recovering from the virus about when it is safe for them to return to work and other social situations.

Privacy

In the management of these issues you will acquire, and will need to acquire, and make records about sensitive personal information about their health relating to individuals.

Our view is that, while the privacy of individuals should be both protected and respected as far as possible, there will be many ‘need to know’ situations in which you will need to disclose, for safety reasons, the identity of people who have contracted the virus or have been exposed to that possibility e.g. to warn others that they may have been exposed to a person who is infected or at risk of infection.

Employee entitlements and economic considerations

The following table is based on the minimum legal entitlements and protections conferred by the Fair Work Act 2009 (Cth) on private sector employers in Australia.

Some private-sector employers may have more extensive obligations under applicable industrial instruments, including modern awards, enterprise agreements or individual contracts of employment.

Some employers are also committing to more generous arrangements e.g. offering paid ‘pandemic leave’ or similar to both casual and non-casual employees.
The table does not deal with workers who are not employees i.e. individual contractors. Arrangements with contractors may be affected by ‘force majeure’ considerations (as to which see here) although some of the legal protections mentioned below also apply to contractors.

 

Scenario Minimum legal entitlements, protections and management options Further considerations/qualifications

Government directed community lock-down resulting in workers being unable to work:

Stand down without pay: Unless an employee can otherwise be ‘usefully employed’ e.g. by working from home, an employer is entitled (under section 524 of the Fair Work Act) to stand them down, without pay, for so long as that situation continues.

The right to stand down requires a stoppage of work from any cause for which the employer cannot be reasonably held responsible.

Use of other paid leave entitlements: During any period of stand-down without pay or after exhaustion of paid entitlements to personal (sick or carer’s) leave, the parties can agree (but are not obliged) for employees to take available entitlements to paid annual or long service leave.

Extent of personal leave entitlement: The annual entitlement to paid sick and carer’s leave is combined, not cumulative, although there is no cap on the amount of leave that might be taken from an accumulated/available entitlement.

Casual leave entitlements: True casual employees have no entitlement to paid personal leave.

Unpaid carer’s leave: Casual and non-casual employees are entitled to take two days unpaid carer’s leave, per occasion required (additional to the entitlement to paid carer’s leave available to non-casual employees).

Notice and evidence requirements for personal leave: The entitlement to take personal (sick or carer’s) leave is subject to the employee giving the employer:

  • notice, as soon as practicable (which might be after the leave has started), of the taking of the leave and of the expected duration of the leave; and
  • reasonable evidence of the entitlement to take the leave.

Other protections: All employees are legally protected from detrimental treatment because they have, or have exercised, legal rights to take the range of leave entitlements available to them.

Employee required to self-isolate by Government direction e.g. recent overseas travellers or those who have had potential close contact with an infected person:

Employee is absent from work sick:

Subject to the notice and evidence requirements (see next column), non-casual employees are entitled to paid personal (sick) leave for up to 10 days for each year of employment.

Employees who exhaust their paid sick leave entitlement are, nevertheless, protected in the short to medium term from dismissal or other adverse action on grounds of incapacity/illness.

Employers can expect some employees to make claims for payment of worker’s compensation benefits based on alleged work-related exposure to COVID-19 infection. Liability will depend on whether infection, or a related injury (including a psychological injury) was work related.

Employee who is not symptomatic, but whom you have directed to stay away from work pending medical testing/clearance, following possible COVID-19 exposure:

This will have to be assessed on a case by case basis.

In high risk scenarios, unless the employee can be usefully employed outside of their usual work environment (e.g. by working from home) the employer will be entitled to stand the employee down without pay until:

  • a medical clearance is obtained; or
  • the employee has completed a 14-day period of self-isolation after potential exposure, without developing symptoms.

In lesser risk scenarios the employer might be obliged to pay for the initial period of absence as normal paid working time, at least for a few days, to enable the employee to seek medical advice about their potential exposure.

The distinction will turn on whether there has been a stoppage of work for which the employer is not responsible.

Outside of Government recommended/directed scenarios, questions of degree will be involved, dictated by the particular risks in a specific situation and the associated workplace health and safety considerations.

Employee is absent from work caring for or supporting someone in their immediate family/household who is sick/injured and because of which they require care or support

Subject to the notice and evidence requirements (see next column), non-casual employees are entitled to paid personal (carer’s) leave for up to 10 days for each year of employment.

Employee is absent from work caring for or supporting someone in their immediate family or household who, because of an unexpected emergency, requires care or support.

Non-casual employees are also entitled to take paid carer’s leave in this scenario.

It is most likely to arise for parents and guardians of infants and school-age children because of unplanned interruptions to childcare or schooling.

The terms ‘care or support’ and ‘unexpected emergency’ have been interpreted broadly in case law.

 

For further information or assistance, please contact our Workplace and Employment team.

Authors
Andrew Tobin
Partner
Andrew is a Partner and the head of HopgoodGanim Lawyers’ Workplace and Employment practice.
Alana Paterson
Special Counsel
Alana is a Special Counsel in our Workplace and Employment practice.
Damon King
Special Counsel
Damon King is a Special Counsel in our Workplace and Employment practice with extensive knowledge of industrial and employment law matters.
Adele Garnett
Senior Associate
Adele is a Senior Associate in our Workplace and Employment practice.
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