Legal Alert – Planning for a pandemic – managing the risks and impacts on your organisation

Following up from our recent newsletter (Legal Alert – Coronavirus and your employment arrangements) about managing the risks of coronavirus in your organisation, we look at why you should be planning for the possibility of emergency restrictions, should the virus spread in Australia.

On 27 February 2020, the Prime Minister upgraded Australia’s response to the coronavirus, declaring that the situation will now be treated as a “pandemic”, even though the rest of the world is yet to declare it as such. At the time of making the declaration, there are confirmed cases of the virus in 47 countries around the world, with over 82,000 victims and almost 2900 deaths.

By making the declaration, the federal government can take emergency steps, if required, to respond as the disease spreads. Emergency steps could include temporarily closing schools, workplaces and public facilities, as has already been done in Wuhan and parts of Italy.

It is currently envisaged, based on previous pandemics, that a coronavirus pandemic could have a serious impact on businesses, and the Australian economy in general, if a worst-case scenario were to eventuate. Media sources have reported:

“The social distancing measures that may be required will have wide-ranging effects, with closure of schools and childcare services, and cancellation of public events. It is estimated that up to 40% of the workforce may withdraw from work at any one time due to illness, the need to care for family members or the fear of contracting the virus in the workplace or on public transport.”

The possible financial repercussions are that the Australian GDP could drop by as much as 10% if a pandemic hits Australia. Australian businesses have already been affected, due to the travel restrictions and community uncertainty about the effects of the virus.

How can you manage your workplace in a pandemic?

For as much as we hope that a pandemic does not hit Australia, by ignoring the threat your organisation is at risk of serious harm. The better approach is to plan for the worst and hope for the best. With regards to your workplace, this means developing a management and recovery plan. We recommend that you:

  • Consider what you can and would need to do if anyone in your workplace were diagnosed with COVID-19;
  • Review how much work could be completed offsite if you had to close your worksite;
  • Review and test how the organisation would operate if it had to be run remotely;
  • Review what your team would need to do to prepare for remote work if they were required to do so;
  • What are the costs of employees working from home? How will they be tracked and covered;
  • Ensure your workplace policies are up to date and your team are acquainted with them;
  • Plan how you would manage team members who could not do their jobs from another work location or from home; and
  • Check your organisation’s insurance coverage so you understand what you are covered for and how you need to manage the process from the insurer’s perspective.

Employees taking leave because of COVID-19

Personal Carer’s leave

Under the National Employment Standards (NES), set out in the Fair Work Act 2009 (FWA), all permanent employees are entitled to a minimum of 10 days for personal and carer’s leave each year.   An employee may take paid personal/carer’s leave if the leave is taken:

  1. because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
  2. to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
    1. a personal illness, or personal injury, affecting the member; or
    2. an unexpected emergency affecting the member.

Whether the issue is that an employee is sick themselves, a member of their household or family is sick, or they have school aged children who are excluded from school because of an emergency measure, the employee will be entitled to use their personal/carer’s leave.

If an employee takes personal/carer’s leave, the Employer must pay them at their base rate of pay for their ordinary hours of work during the relevant period. If an employee is on personal /carer’s leave and a public holiday falls during that period, they must be paid for the public holiday rather than have that time drawn from their personal carer’s leave.

If your employees are covered by a modern award or enterprise agreement, there may be more beneficial provisions that they are entitled to and you must comply with those provisions.

Unpaid Carer’s leave

Under the NES, an employee may also take unpaid carer’s leave if the leave is taken to provide care or support to a family or household member and they do not have any paid personal/carer’s leave available. An employee may take unpaid carer’s leave for a single continuous period of up to 2 days or any separate periods to which the employee and his or her employer agree.

Compassionate leave

If the worst happens and an employee has a family or household member who contracts or develops a personal illness that poses a serious threat to their life, or they die, the employee will be entitled to 2 days of compassionate leave for each of those occasions. An employee may take compassionate leave for each occasion if the leave is taken:

  • to spend time with the member of the employee’s immediate family or household who has contracted or developed the illness, or sustained a personal injury; or
  • after the death of the member of the employee’s immediate family or household

An employee may take compassionate leave as a single continuous 2-day period; 2 separate periods of 1 day each; or any separate periods to which the employee and his or her employer agree.

If the compassionate leave relates to the contraction or development of a life-threatening personal illness, or the sustaining of a personal injury, the employee may take the compassionate leave for that occasion at any time while the illness or injury persists.

Notice requirements for leave

An employee must give their employer notice of the taking any of the above forms of leave as soon as possible (which may be a time after the leave has started) and they must advise the employer of the period, or expected period, of the leave.

An employee who has given their employer notice of the need to take leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for the reason and in the way specified in the FWA. An employee is not entitled to take leave unless they comply with the notice requirements.

Notice is an area that often requires further information from employers about form and timing to ensure that all parties are clear about the terms of the provisions. We recommend that employer’s have thorough leave policies in place, so employees understand what is required of them, when they wish to access one of the forms of leave available under the NES, or if the employer affords them further entitlements.

Organisation shutdown ordered

Section 524 of the FWA allows employers to stand employees down without pay if the employee cannot be usefully employed because of one of the following circumstances:

  1. industrial action (other than industrial action organised or engaged in by the employer);
  2. a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;
  3. a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

The third reason is the one that would apply in the instance of a site or organisation shutdown brought about by a government direction, in response to a pandemic.

If there are further terms in a modern award or enterprise agreement that affect stand down provisions, those terms will override or add to the FWA provisions.

If an employer stands down an employee based on section 524, the employer is not required to make payments to the employee for the duration of the stand down.

Alternative leave arrangements

To build goodwill with your employees, it may be good practice to offer them the opportunity to draw on their accrued annual leave, or if they can access long service leave, to draw on that provision, rather than be without pay for the duration of a stand down.

If an employee enquires about accessing long service leave, it is critical to remember that they must have completed the required periods of service before they can draw on their accrued leave. In Queensland, employees can access their accrued long service leave in accordance with terms set out in the below table:

Period of continuous Service Long service leave entitlement
10 years 8.6667 weeks
After a further 5 years A further 4.3333 weeks (total of 13 weeks)
More than 15 years Long service leave can be accessed as it accrues

An employer can exercise the discretion to offer employees the alternative of taking annual leave in advance of its accrual. If you do decide to apply that option, it is important to document the agreement to ensure that you can claw back any overpayments if an employee resigns before they have accrued the leave they have already used. Most modern awards have a template document for the purpose. We also recommend that your organisation’s leave policy covers the process applied for taking annual leave in advance and when it will be permitted.

If you use time off in lieu (TOIL) of overtime payment, you may invite your employees to use any accrued TOIL during a stand down rather than remain unpaid for the stand down period.

Working from home

Directing your employees to work from home can be a good alternative to closing an organisation down during a period of enforced closure, if your organisation lends itself to that arrangement. Even if all of your employees can’t do productive work during a closed own period, you may need to keep some administrative, reception or office based staff in operation to keep the organisation running as much as possible, to retain some cash flow or manage ongoing projects.

If you direct your employees to work from home, you will be responsible for ensuring that they are properly equipped to do their work and comply with your obligations.

Working from home will not be effective if the employee is staying home to care for children at the same time. To ensure that your staff understand what is required when they work from home, we recommend that you have a “Working from Home” policy and agreement. Your policy should set out the requirements for employees working from home, such as:

  • Communication with the workplace, other employees and management;
  • Level of supervision required;
  • Accessibility for clients;
  • Recording time and workflow;
  • Privacy considerations;
  • Compliance with workplace health and safety requirements;
  • Resources and equipment required; and
  • Responsibility for costs incurred.

If you direct employees to work from home, you will be responsible for covering the associated costs like the relevant component costs of:

  • Internet;
  • Telephone line rental/ mobile plan; and
  • Electricity.

Before you proceed with a “Working from Home” Agreement, we recommend that you direct the employee to conduct an audit of the home and workspace to ensure that they have:

  • An ergonomically sound workstation that meets work requirements and minimise risk of injury;
  • There is sufficient light for work to be performed safely;
  • There is sufficient ventilation;
  • Noise levels are at acceptable levels so as not to distract the employee during work;
  • They have access to any further equipment required to complete work tasks in an efficient manner;
  • They have safety equipment like fire extinguishers and first aid kits, and they know how to use them;
  • They have the appropriate telephone and data lines to access and complete work;
  • They have a secure environment if they are working with information subject to privacy requirements; and
  • They are appropriately insured to work from home.

It will be easier to respond to a close down with working from home arrangements if you discuss the idea with your staff ahead of time, train them in the policy standards and assess their capacity, before you need to apply the provisions.

Sending sick employees home

When an employee shows up to work sick, not only are they more likely to spread their illness, but they also cost your organisation money in lost productivity. Sickness can spread quickly within the workplace. With many illnesses, people are contagious before they show symptoms, hence recent directions for people exposed to COVID-19 to self-isolate for the 2‑week incubation period.

Employers have a duty of care under the Work Health and Safety Act 2011 (Qld) (“WHS Act”) to ensure, so far as reasonably practicable, the health and safety of workers. Similar provisions can be found in corresponding work health and safety legislation around Australia. Equally, under the WHS Act, workers have a duty to take reasonable care for their own health and safety and take reasonable care that their acts and omissions do not adversely affect the health and safety of other persons. They must also comply with reasonable instructions and cooperate with policies and procedures given by their employer.

If an employer reasonably suspects that an employee is posing a health risk to other employees, for example, if the employee has signs of a contagious disease, the employer may consider it necessary to ask the employee to obtain a medical certificate indicating that the employee is fit to attend for work.

A direction of this type can be a source of confusion and dispute, so it is recommended that the ability to direct employees to take leave when they are not fit for work is set out in a workplace policy. It may also be relevant that it is included in the employee’s employment agreement.

Before you get to the situation where you have to direct employees to take personal leave, we recommend that you review your workplace policy on leave provisions to ensure that it explains why and when you might direct someone to take personal leave and what they need to do to ensure they can return to the workplace safely.

WHS and contractors

If you deal with contractors at your workplace, you should be mindful that their contract should apply the policies and procedures of the workplace to their work. It is also important that they understand their workplace health and safety obligations and that if they attend the workplace whilst sick, you may need to direct them to leave the workplace and return only when they have been cleared as fit for work by a medical practitioner. In the current environment, hospitals and private practitioners are alert to the risks of spreading the COVID-19 virus and will not clear someone to work if they have been exposed to the virus.

Keep up to date

If you are concerned about managing the risks of infection in your workplace, be mindful that the virus has spread, and the Australian government continues to update its travel advice to capture high risk locations and changes in the spread of the virus. If someone in your workplace is travelling and due to return, check the Smartraveller website for current information on the COVID-19 virus.

https://www.smartraveller.gov.au/news-and-updates/coronavirus-covid-19

What if an employee is caught in another country while they are traveling?

There is a possibility that employees may be caught in quarantine situations if they are currently travelling overseas. The Fair Work Regulations (reg 3.01) and the FWA provide protection to employees who cannot attend work for an extended period of time due to illness or injury.

Under section 352 of the FWA, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within 24 hours after the commencement of the absence or such longer period as is reasonable in the circumstances.

Under the general protections regime of the FWA, employee’s are protected if they are absent from the workplace for up to 3 months in a 12 month period, due to illness or injury and where they do not have paid personal/carer’s leave to cover their absence, whether based on a single or separate illnesses or injuries. On that basis, if you were to take steps to terminate their employment because they were not fit to attend work, because of an illness or injury they had advised you of, you would be at risk of a general protections claim. Before you do take steps to bring an employee’s employment to an end, because of an extended period of absence, we recommend that you seek legal advice about the risks attached to your proposed actions.

Conclusion

Managing the effects of COVID-19 and any other serious contagious illness is best done with good planning and preparation. That must be done ahead of time and should ideally be tested to ensure it is effective at the critical period. Given the view of the World Health Organisation is that it is a case of when the virus hits rather than if it hits, planning now could save you time, stress and money.

If you don’t have workplace policies in place or you need assistance in preparing crisis management plans that comply with relevant legislation, we can assist you. Call us at 07 3160 0010 or contact us at our website www.activelaw.com.au or email michelle.cowan@activelaw.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.