We’re all in uncharted waters, but it’s now clear that small and medium sized businesses will be greatly affected. We have been fielding calls from clients with issues arising from the virus and how it impacts the relationship between employer and employees.
Our overriding advice is: preparing now for how Coronavirus/COVID-19 might affect your business is a smart move.
- Before you do anything else, consider how your business might need to protect its employees/ clients/customers/patients against the spread of infection. Remember that this isn’t just a health issue but an occupational health and safety issue. Employers have to take all reasonable and practical steps to ensure the health of their employees. Remind them of the need to wash hands regularly and to limit opportunities for the transfer of infection. Remind them that if they are unwell, they should not attend work. Failing to take action could leave your business exposed to potential liability, but your action needs to be proportionate as well.
- Consider how your business could respond if it were forced to reduce opening hours or close down for a period of time. Is it possible and practical for employees to work from home? If employees are going to work from home will they be able to work their normal hours from home, or something less than normal hours? Would some employees but not others be able to work from home (i.e. administrative employees could work from home, but trade employees may not be able to work from home because of the essential requirements of their position)?
- If you propose to have an employee work from home, you have an obligation to ensure a safe home-based workplace. The employee working from home is in the workplace whilst at home! Check with your workcover insurer – it will probably require an assessment be performed to ensure the “home” workplace is safe. Get everything in writing. Have a policy about working from home. Check how you’re going to keep any confidential information private. Consider what resources the employee might need at home (adequate internet connection, supplies and equipment) to enable them to work productively. Remember to check in regularly, emotional well-being is as important as physical health.
- You do have the right to stand down employees under the Fair Work Act 2009 (Cth), but with limitations. Always double check the employment contract, any policy and applicable Award or Enterprise Agreement obligations. Notify your employees now of your plan – preferably in writing and following the consultation process required, especially under an Award or Enterprise Agreement. If you can stand down without pay (get legal advice), consider whether you will offer your employees the election to use annual leave (or other types of leave) on some or all of the days they are stood down (ask the employee to put what they would like in writing to you).
- You do have the right to direct an employee not to come to work if clearly unwell.
- If not clearly unwell – check whether there is a Federal Government guideline requiring isolation (for example someone returning from overseas travel). If there is no guideline that applies, then the employer must act reasonably. Consider the industry within which your business operates – what is reasonable and proportionate to the risk. For example, more stringent measures will probably be reasonable for workers in the health care or food service industries. Consider whether other measures, like separation or working from home, might suffice.
- Can I send an employee for a medical test? Yes if done reasonably and with discretion. Please note recent media reports that doctors cannot give “clearances” for COVID-19. It would be unreasonable to require something that cannot be provided.
- If you’re going to vary hours or place of work, always do it in writing and after reasonable consultation (but remember that it’s your business, and you can issue reasonable directions to employees).
- If the worst comes to the worst and you have to consider redundancies, make sure you comply with all requirements in the employment contract and any applicable internal policy, Award or Enterprise Agreement.
If you have any questions about employment law relevant to Coronavirus/COVID-19 as an employer or employee, please feel free to get in touch.
MORGAN COUZENS LEGAL
