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19 Mar 2020

HHG Legal Group’s Director Murray Thornhill and Dispute Resolution and Employment Lawyer, Gemma Wheeler-Carver discuss employer obligations during this uncertain time.

20200319 COVID Employee Inarticle

With the world’s human resources landscape exponentially changing over the last few weeks, it has become evident that the first responsibilities an employer should be considering is that they must, as far as practicable, provide and maintain a working environment in which their employees are not exposed to hazards.

These specific obligations are set out in the Occupational Safety and Health Regulations 1996 (WA) and industry-specific obligations are set out in various Codes of Practice and Guidances notes. Further information on these requirements can be found here: https://www.commerce.wa.gov.au/worksafe

What responsibilities does an employer have?

These obligations extend to a hazard such as the risk of infection of employees and others in the workplace. The consideration when assessing the steps that can be taken should always be “what is practicable to provide and maintain a hazard-free working environment?”

Steps that workplaces should consider include:

  • Providing ample soap and hand towels in all work areas.
  • Providing access to hand sanitiser in general work areas, particularly those accessed by external persons.
  • Providing tissues (and appropriate disposal containers) in wet and general work areas
  • Reminding staff and workplace visitors of appropriate hygiene.
  • Limiting visitors to the workplace and allowing staff to work from home where possible.
  • Requiring staff to work from home
  • Providing for staff to work from home when under government mandated self-isolation or quarantine.

As the government and medical information continue to be updated, the appropriate steps must be continually re-assessed.

What if my employees can’t work from home?

Working from home is not an option available to all businesses, or all employees of a business. For example, cafes, restaurants, retail, hotel, reception, construction, (other examples) may not have capacity for employees to work from home if under self-isolation, government mandated isolation/quarantine, or are caring for someone who is unwell (or a dependent who is in self-isolation).

The rights of an employer in that situation will be governed by the relevant legislation (State and/or Federal), the Award or Enterprise Agreement that applies to the employer and employee, the employment contract, and any policies and procedures of the employer.

What if my employees test positive for coronavirus, are otherwise unwell, or need to care for a loved one who is unwell?

Your employees continue to have the same rights to personal/carer’s leave as they do in relation to other illnesses. Employers should carefully consider each employee’s entitlements, and the circumstances of their requirement for leave. In addition, employers can agree with their employees to provide additional paid leave (for example in relation to casual employees who are otherwise only entitled to unpaid carer’s personal leave).

Employers are still entitled to receive notice of the leave that an employee is taking, even if the assumption during this time is that it is due to coronavirus. This notice must be given as soon as practicable and advise of the expected duration of the leave.

Full-time and part-time employees who must care for immediate family (including parents and grandparents) and those in their household are entitled to carer’s leave.

Additional notice requirements and leave entitlements may be contained in the Award(s)/Enterprise Agreement and their employment contract.

What if my employee is unable to work?

Employers should ensure their policies address their expectations in relation to overseas and interstate travel, including their annual leave and long service leave policies. These policies may need to be updated regularly as the government advice changes, in particular as travel bans (into and out of Australia) are imposed.

Generally, by agreement, employers and employees can agree for an employee to take additional annual leave or to take unpaid leave, or alternatively to reverse previously booked annual leave. Employees who are sick continue be entitled to their personal leave entitlements (including two days unpaid sick leave).

If employees must comply with government-imposed restrictions, an employer may be able to place an employee on unpaid leave however an employer should carefully consider the rights of the employee as set out in the legislation, Award or enterprise agreement and employment contract.

What if I no longer require certain employees or an employee is on extended unpaid sick leave?

Employers will need to carefully consider both their legal obligations and the business and reputational effect of making the decision to terminate the employment of an employee. Options such as redundancy are still available to employers who no longer require a specific role to be undertaken, and employers should be careful to follow the processes (if any) set out in the relevant Award and make any payments to which an employee is entitled (or seek an exemption from the Fair Work Commission or the Western Australian Industrial Relations Commission). Individual employment contacts or Awards/Enterprise Agreements may also set out grounds for termination or stand-down from work entitlements and employers should seek legal advice on the options that may be available to them.

What next?

Employers should keep updated on the latest government and health advice, and keep their employees updated on the relevant policies.

For employers in the Federal system, the Fair Work Ombudsman is providing updated advice on a (near)-daily basis: https://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/coronavirus-and-australian-workplace-laws

How HHG can help

If you need any assistance, our dispute resolution team are always available to help you with any questions that you may have. If you require any further advice or assistance regarding your obligations and rights, please contact Gemma Wheeler-Carver at 1800 609 945.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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