Legal Alert – Coronavirus and your employment arrangements

The current Novel Coronavirus outbreak is creating challenges on many fronts as governments around the world act to stem the spread of the disease. At the time of writing this, Australia has 14 confirmed cases of novel coronavirus with 165 confirmed exposures to be tested. Whilst those numbers are low, the experience in the centre of the outbreak has provided an indication of how fast the disease can spread. On January 20, there were six deaths out of 282 confirmed cases in Wuhan. By January 28, there were 106 deaths from about 4,500 confirmed cases. By February 6, approximately 24,557 confirmed cases of the virus, and 492 deaths have been reported internationally. With the spread of the disease comes a raft of issues that could affect the way your organisation operates.

Current Australian government advice

As at 6 February 2020, the advice from the Department of Foreign Affairs and Trade (DFAT) for travel to mainland China is ‘level 4 – do not travel’. This means that you should delay any business travel to China until the risk level is assessed by the government as having passed. The following travel restrictions to people entering Australia, having left mainland China after 1 February 2020, are:

  • foreign nationals (excluding permanent residents of Australia) who are in mainland China, will not be allowed to enter Australia until 14 days after they have left or transited through mainland China
  • Australian citizens, permanent residents and their immediate family will still be able to enter Australia, as well as airline crews who have been using appropriate personal protective equipment

In addition, the following isolation requirements apply:

  • if you have travelled to Hubei Province within the past 14 days, you must isolate yourself until 14 days after you left Hubei Province
  • if you have left or transited through mainland China on or after 1 February 2020 you must isolate yourself until 14 days after leaving China
  • if you have been in close contact with a confirmed case of novel coronavirus, you must isolate yourself for 14 days after last contact with the confirmed case

Importantly, these requirements apply to students attending childcare, school or higher education and will mean that parents or carers may have to take carer’s leave to look after children isolated from childcare or school.

Risks in the workplace

While State and Federal governments work to manage and minimise the outbreak, employers are faced with the dilemma of how to manage the risks and the effects on their operations.

We understand that it takes 14 days for the disease to incubate, so there remains a risk of exposure in that period. Further, if you have anyone working in your organisation who has travelled through China recently or who has been in contact with someone who has, there will be a risk of your staff and clients being exposed to the disease as was seen recently in a South Australian real estate agency. The media have reported that the agency temporarily closed, with staff sent to self-imposed quarantine after finding out South Australia’s two confirmed coronavirus victims attended one of their auctions in the last fortnight. The owners of the agency elected to close the office to minimise any risk to their staff, customers and the public until Thursday the 6th February, when they will reassess the situation.

Where can you get information updates?

For information about health and safety in the workplace, go to:

Personal and carer’s leave entitlements in the private sector

Full and part-time employees who can’t attend work because they are sick can take paid personal/carer’s leave. If an employee needs to look after a family member or member of the employee’s household who is sick with coronavirus, they are entitled to take paid personal/carer’s leave.

Casual employees are entitled to 2 days of unpaid carer’s leave per occasion, which simply means that their employment is protected in that period. Full and part-time employees can take unpaid carer’s leave if they have no paid personal/carer’s leave left.

An employee must give their employer evidence of the illness or unexpected emergency if their employer asks for it. If you require documentation, you should either have that requirement recorded in an existing workplace policy or failing that, let them know when they contact you to advise they will be absent.

Employee is quarantined

The Fair Work Act does not set out rules for these kinds of situations, so employees and employers need to negotiate their own arrangements. Possible reasonable arrangements may include:

  • taking sick leave if the employee is not fit for work because of a personal illness;
  • taking annual leave; or
  • taking any other leave available to them (such as long service leave or any other leave available under an award or contract of employment).

If an employee doesn’t have sufficient personal leave entitlements to cover their absence, they will need to arrange any other paid or unpaid leave by agreement with their employer. Whilst leave without pay (LWOP) is not an entitlement under the Fair Work Act (the Act), an approved period of LWOP will protect them from dismissal because of their absence. Under the Act an employee’s employment is protected where their absence from work is less than 3 months, in one block or across a 12-month period.

Employee wants to stay home as a precaution

If an employee wants to stay at home as a precaution against being exposed to coronavirus, they will need to make a request to work from home (if that is possible) or to take some form of paid or unpaid leave, such as annual leave or long service leave. These requests are subject to the normal leave application process in the workplace, but given the urgency of the situation, it is recommended that employers act swiftly to process leave requests.

It is recommended that employees who are concerned about their personal risk of contracting coronavirus should speak with their doctor urgently for a professional assessment of the risks to their health.

Employer wants their staff to stay home

Under work health and safety laws, employers are required to ensure the health and safety of their workers and others at the workplace by removing a risk entirely or minimising its effect as far as they practically can. Workers also have responsibilities under the same laws to remove or minimise health and safety risks.

If an employee is at real risk of infection from coronavirus, you should request the employee to:

  • seek medical clearance from a doctor; and
  • work from home (if possible); or
  • not work during the risk period.

For example, if the employee has recently travelled through mainland China, or has been in close contact with someone who has the virus, it may be prudent for them to be isolated from the workplace until 14 days from their last point of contact with the virus.

Under the Act, an employee can only be stood down without pay if they can’t do useful work because of equipment break down, industrial action or a stoppage of work for which the employer can’t be held responsible. The most common scenarios are severe and inclement weather or natural disasters. Where employees can perform work from home or another worksite, they should be instructed to do so. However, because of the nature of this situation, you should seek advice if your situation changes to ensure you remain compliant with your employment obligations.

When an employer directs a full-time or part-time employee not to work, the employee is entitled to be paid for their ordinary hours while subject to the direction. You should consider your obligations under any award, your contracts of employment and workplace policies and plan accordingly before you give an instruction to an employee to stand down.

Employers need to balance their legal obligations, including those relating to anti-discrimination, and as such, should carefully consider the broader effects of the virus on their organisation and its clients.

If you are concerned that you organisation may be affected by the Novel Coronavirus and you are unsure about how to manage the situation, our team can provide advice and draft documents to ensure that you remain compliant with your obligations. You can contact us on (07) 3160 0010 or at michelle.cowan@nfplawyers.com.au  


Disclaimer: Reliance on Content
The material distributed is general information only.
The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should  seek legal or professional advice in relation to your specific situation.