By Amanda Curatore

The spread of coronavirus also known as (COVID-19) continues and sadly Australia has recently reported its third death as a result of the illness. Across the globe, there have been over 117,000 confirmed cases of coronavirus and approximately 4,200 reported deaths. Infections have been detected in more than 113 countries and territories. In Australia, 126 cases of coronavirus have been confirmed. Of these confirmed cases in Australia, 24 people have recovered, three people have passed away, with the remaining cases reported to be stable.

On 12 March 2020, the World Health Organisation (WHO) declared that coronavirus is a global pandemic. The number of cases of COVID-19 outside China has increased 13-fold, and the number of affected countries has tripled.

Many public organisations have already published statements about managing the risks posed by this virus, including the Australian Government Department of Health (DOH).

Businesses and employers are being advised by the Australian Government to take this virus seriously and to educate employees on the symptoms of the illness and ask that employees report any recent travel to China, Iran, South Korea, and Italy, including specific dates. It is important to note that the incubation period for the virus is believed to be up to two weeks during which a carrier will often not exhibit any symptoms.

According to WHO, common signs of coronavirus infection include “respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In more severe cases, the infection can cause pneumonia, severe acute respiratory syndrome, kidney failure, and even death.” Currently, there is no specific treatment for this virus and no vaccine to prevent it.

DOH advises individuals returning from mainland China, Iran, the Republic of Korea and Italy to they must isolate themselves for 14 days after leaving these countries. For individuals who have been in close contact with a proven case of coronavirus, they must isolate themselves for 14 days from the date of the last contact with the confirmed case.

On 5 March 2020, the Australian Government extended existing travel restrictions to include the Republic of Korea. Mainland China, Iran, Italy and the Republic of Korea have been identified to be at a higher risk for COVID-19.

What can employers do?

• Engage with employees who have recently returned from China, Iran, the Republic of Korea or Italy, to ensure that they intend to follow the Department of Health’s self-isolation guidelines to remain away from the workplace for 14 days from their return date (with appropriate work from home arrangements where practicable);
• Monitor the situation and adopt protocols recommended by the WHO and DOH;
• Encourage employees to visit the WHO and DOH websites;
• Inform employees of the symptoms of the coronavirus;
• Reinforce or implement safety policies and procedures;
• Provide contact information for reporting coronavirus-related concerns; and
• Remain mindful of Occupational Health & Safety regulations if respirators or face masks are offered to employees.

Employers rights and obligations

Many employers are now faced with the challenge of understanding their rights and obligations in managing employees during this outbreak. Employers are reminded to keep in mind employee safety, employer rights, and leave entitlements to ensure the best outcome for everyone involved. Here are some areas to consider:

Workplace Health & Safety

Employers must provide and maintain a safe workplace. During this time, businesses should review the workplace to ensure that it is, to the extent that is possible, free from risk, and that arrangements are considered and put into place to assist workers and respond to any incident, should the need arise.

Businesses should consider Health & Safety procedures to prevent employees from contracting the virus and ensure that all staff are aware of the requirements in this regard. Employer Work, Health, & safety obligations may extend to measures ranging from the mandatory quarantine of employees in the event of travel to infected areas. For example, by requiring employees to work from home to providing alternative locations of work and ensuring the availability of P2/N95 face masks or equivalent personal protective equipment.

One particular factor to consider is ensuring employees have access to adequate facilities for washing hands with soap and water or alcohol-based hand rub, with such being a precautionary measure recommended by the DOH to protect against infections.

Employers, however, should also bear in mind disability discrimination laws and take care not to discriminate against employees based on actual or imputed diseases or infections.

Alternative working arrangements

Employers may want to consider implementing temporary flexible work arrangements with employees who may be impacted. Flexibility in the form of hours, location, and pattern of work could mitigate the effects of an emergency and maintain productivity. Consider, in particular, whether it is feasible for employees to work from home and perform their usual or modified duties until it is safe for them to return to work.

Access to leave entitlements

In circumstances where employees have been quarantined due to the coronavirus disease, they may request to access their annual leave over this period, subject to approval, to mitigate any loss of income. Here are some other scenarios which outline the obligations of employers and rights of employees:

If an employee is personally unwell or caring for an immediate family member who is unwell due to coronavirus:

Personal/carer’s leave may be taken where the employee is not fit for work due to personal illness or injury, or to provide care or support to a member of their immediate family or household due to illness, injury or emergency. To access this leave, the employee should provide notice and may be required to provide evidence of the reason for the leave upon the request of the employer.

If an employee is required to be quarantined:

Where an individual self-isolates, either personally or upon the Government’s direction, and is not unwell we are of the view that this is not arising from the employee being “unfit for work due to illness or injury” and as such there is no obligation to pay given that the employee cannot be usefully engaged. Having said this, we recognise the impact upon businesses and employees and as such are encouraging employers to come to a personal arrangement with employees concerning taking paid leave wherever possible.

If an employee is self-isolating:

In the instance where an employee wishes to remain at home as a precaution but is not unwell, they may consider the following:

• Request to work from home; or
• Take a period of annual leave which has accrued; or
• Take a period of unpaid leave.

If an employer is requesting an employee to self-isolate:

Under Work Health & Safety laws, employers are required to ensure the health and safety of their workers and others at the workplace (as far as is reasonably practical). Therefore, in circumstances where an employer wishes to take precautionary measures and direct an employee to remain at home, the employee is entitled to be paid while subject to that direction.

Where an employee is exhibiting flu-like symptoms but does not report to be unwell and attends work, where an employer requests the employee attend a doctor and obtain a fitness for work certificate, the costs of the medical appointment, as well as time off attending the doctor, must be paid by the employer and this is not deducted from the employees personal/carer’s leave accrual balance. In the event the medical certificate returns a declaration that the employee is unfit to attend work, then at this point employees will be paid personal/carer’s leave until they have exhausted their entitlement, at which point it will become unpaid leave.

Employee stand-down

If an employee cannot usefully perform work due to circumstances beyond the control of the employer, the Fair Work Act allows an employee to be stood down.

This means that employees can be sent home, and asked to remain home, without pay.

This information should not be taken as advice that employers are able to impose a stand-down, and specific advice should be taken in all circumstances before any action is taken by an employer.

If a stand-down is to be implemented the employer should:

• Seek specific advice in all circumstances to ensure that the risks with such an approach are understood by the Company;
• Engage with impacted employees as soon as possible and provide employees with a reasonable opportunity to present ideas or proposals which may avoid the stand-down;
• Confirm the stand-down in a meeting and later confirmed in writing;

Maintain constant contact with employees during the stand-down period and provide updates and information which will assist with their ongoing understanding of the matter; and

• The continuation, or cancelation, of a stand-down, should be confirmed in writing.
• Employers should, however, not enact a stand-down prematurely or arbitrarily as to do so may expose the business to a dispute or risk.

If you require further information, please contact the Client Success team on 1300 453 514 or at support@enablehr.com.

Amanda Curatore is a qualified senior workplace relations consultant at FCB Group and HR Assured. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations and managing risk.