Since the World Health Organisation declared COVID-19 a pandemic we have been inundated with enquiries by both employers and employees as to their respective rights and obligations in the event that they either contract the virus or alternatively self-quarantine by choice to reduce the risk.
Work Health and Safety (WHS)
The Work Health and Safety (WHS) legislation requires employers “to ensure, so far as reasonably practicable, the health and safety of workers and others at the workplace”. Importantly this includes the maintaining and providing of a risk-free work environment for the health and safety of employees with adequate facilities given to the carrying out of work as is reasonably practicable.
Employer must comply by identifying the risks of COVID-19 to the workplace and enforcing what is reasonably practicable to eliminate or at least minimise the risk. This can be implemented through control measures including:
- monitoring and acting in accordance with expert advice;
- educating and informing employees of all available expert and medical information;
- reviewing control policies and effectiveness of same in light of medical and expert advice;
- considering workplace activities, events and social gatherings; and
- having employees work from home if practicably suitable for those who need to self-quarantine.
Sick leave provisions under the Fair Work Act for employees other than casual workers, provide for 10 days paid personal/carers leave on an accrued basis. Within the context of COVID-19 personal/carers leave will apply:
- when the employee requires to look after a family member who is sick with the virus;
- if the full-time or part-time employee is not fit for work due to the virus; and
- if the employee is needed to care for a family member due to an “unexpected” emergency such as unexpected health issues of a child or elderly family member.
Employers will also be protected from dismissal if temporary absence is due to injury or illness unless such absence exceeds three months, or total absences are three months within a 12 month period in which the employer will still require a valid reason for dismissal of the employee.
Employees’ requirements to advise employers of self-quarantine
It is highly advisable that all employees immediately notify their employer if they are required to self-quarantine due to either contracting the virus, overseas travel or coming into contact with those who are infected.
The Fair Work Act does not provide specifically for the COVID-19 pandemic, therefore employers and employees need to come to some arrangement which may necessarily involve:
- working from home or other suitable location according to applicable workplace agreement and workplace policies;
- using leave entitlements including sick leave, annual leave or long service leave; or
- using unpaid leave as agreed upon with the employer
These are difficult and challenging times. employers and employees find themselves in unchartered territory so far as their rights and obligations are concerned when dealing specifically with COVID-19. Ultimately it will require good faith discussions on the part of both the employer and employee to resolve what can be difficult and complex employment issues.