Published 24 March 2020
After a season of devastating bushfires, Australia has now been hit by the outbreak of coronavirus (also referred to as COVID-19). Many employers are confronted with the impact the pandemic may have on their workplace and employees. Employers and employees should be aware of their rights and obligations in the midst of a pandemic.
Modern Awards, enterprise agreements and employment contracts may contain specific provisions in relation to an emergency or natural disaster. Employers and employees should first check if any particular provision exists. If there is no such entitlement, the Fair Work Act 2009 (Cth) (FW Act) offers a range of available options.
Managing Employees During Emergency
A stoppage of work can force employers to temporarily close their business. In such circumstances, section 524 of the FW Act provides that an employer may stand down employees without pay during a period in which:
- employees cannot usefully be employed because of a stoppage of work; and
- the employer cannot reasonably be held responsible for the stoppage.
An emergency situation may cause a stoppage of work for which an employer cannot reasonably be held responsible for. In that case, there is no obligation for employers to pay employees during the period of stand down, but they may choose to do so as a gesture of goodwill. The Fair Work Ombudsman are advising that standing down employees without pay will not be generally available due to a deterioration of business conditions or because an employee has coronavirus. However, if there was an enforceable government order or direction requiring the business to close (which means there is no work at all for the employees to do, even from another location) or if there was a stoppage of work due to lack of supply for which the employer could not be held responsible, the employer may be able to stand down employees.
In any event, stand down provisions do not apply for employees who are already on leave or authorised to be absent from work.
Other alternatives should be considered before an employer stands down their employees without pay. The Fair Work Ombudsman advises that alternatives may include;
- proposing employees to take a period of accrued leave, such as annual leave – this is only possible with the agreement of the employer and the employee;
- if other work sites exist and have not been affected, considering voluntary work hours sharing arrangements among sites and employees; or
- organising flexible arrangements when possible, such as working from home.
Employee’s working arrangements can only be altered in accordance with the FW Act and any relevant award or agreement. Employers should keep in mind the safety and wellbeing of their employees when doing so.
Employees’ Entitlements During Emergencies
Emergency situations will often result in employees requiring time off to care for themselves or their family members. This is also true during the coronavirus pandemic. There is no specific form of leave available to an employee for such an exceptional situation. Employees who have accrued annual leave may use their annual leave entitlements in these circumstances, with the employer’s agreement. Otherwise, employees may be entitled to personal/carer’s leave or compassionate leave.
Full-time and part-time employees may have an entitlement to take accrued paid personal/carer’s leave if they are unfit for work because of a personal illness or injury or to provide care or support to a member of their immediate family or household because of a personal illness, injury, or in the event of an unexpected emergency. For example, if the school of an employee’s child closes due to the coronavirus pandemic, the employee may be eligible for personal/carer’s leave to take care of their child.
However, an employer cannot require an employee to take paid personal/carer’s leave. If an employee chooses not to use their paid personal/carer’s leave or does not have sufficient accrued personal/carer’s leave they will be unpaid for the period they are absent.
Employees who have used all of their paid personal/carer’s leave and casual employees are entitled to two days of unpaid carer’s leave for each particular occasion when a member of their immediate family or household requires care or support due to illness, injury or in the event of an unexpected emergency.
Employees are entitled to two days of compassionate leave for a particular permissible occasion to spend time with a member of their immediate family or a member of their household who has sustained a life-threatening illness or injury or after the death of a member of the employee’s immediate family or household. Employees, other than casual employees, are entitled to be paid during compassionate leave.
When taking personal/carer’s leave or compassionate leave, employees must give their employers notice of the taking of leave and provide evidence to support the leave period if required.
Community Service Leave for Volunteering
Pursuant to section 109 of the FW Act, employees who are members of a recognised emergency management body may be entitled to take unpaid community service leave for the purpose of engaging in an eligible community service activity, such as dealing with an emergency, on a voluntary basis.
The FW Act does not specify the amount of time that can be taken. However, the absence of work must be reasonable having regard to the following circumstances:
- time when the employee engages in the activity;
- reasonable travelling time associated with the activity; and
- reasonable rest time immediately following the activity.
It may be unreasonable to expect small businesses to pay their employees when volunteering. However, larger companies have started to implement more generous volunteer leave arrangements allowing employees to take paid leave when they are away volunteering in emergency services.
Employee Stuck Overseas or Required to be Quarantined or to Self-Isolate
The FW Act does not have specific rules for these types of situations. Employees and employers need to come to their own arrangement. The Fair Work Ombudsman advises that arrangements may include
- working from home or another location (if this is a practical option);
- taking sick leave if the employee is sick;
- taking annual leave;
- taking any other leave available (such as long service leave or any other leave available under an award, enterprise agreement or employment contract); or
- arranging any other paid or unpaid leave by agreement between the employee and the employer.
If the employee is quarantined because of a confirmed case of coronavirus or is otherwise sick, they will be entitled to use their accrued paid personal/carer’s leave.
If an employee cannot work due to travel restrictions (for example, if they are stuck overseas), they are not entitled to be paid (unless they use paid leave entitlements).
Employers should always consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Employees who Want to Stay Home as a Safety Measure
Employees who want to stay at home as a safety measure need to come to an arrangement with their employer that best suits their workplace. An employee could make a request to work from home under section 65 of the FW Act or to take some form of paid or unpaid leave, such as annual leave or long service leave. Normal leave application processes in the workplace should apply. If the employee does not enter into an arrangement with their employer or use paid leave, they are not entitled to payment in these circumstances. However, given the emphasis the government is placing on social distancing, employers should agree to a request to work from home in the current circumstances.
Working From Home Policies
Employers have a legal responsibility to protect the health, safety and welfare of their employees, even when they work from home. This includes ensuring the working environment is safe and without risks to health and safety. Employers may want to conduct a risk-assessment of their employees’ intended home workspace and implement a policy on working from home arrangements.
Not only will an employer need to consider how an employee will undertake work away from the office and the workplace health and safety of the employee, but also how the employer’s information and systems will remain secure and confidential.
If you are unsure of your work entitlements, need information on how the coronavirus’ measures will impact your business, or how to comply with the FW Act, please contact our office on 02 8436 2500.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations.
Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.