The outbreak of COVID-19 has given rise to issues that every employer must address, including employee entitlements and health and safety obligations. Some of the key issues are addressed below.
Employers can direct employees who are sick with the coronavirus not to come to work and to get medical clearance from a doctor before returning to work. Full-time and part-time employees can take paid sick leave in this situation.
If an employee needs to look after a family member of their household who is sick with coronavirus, or suffering an unexpected emergency (e.g. school closure) they are entitled to take paid carer’s leave.
The Fair Work Act 2009 (Cth) does not have specific rules for when an employee is unable to attend work because they cannot return from overseas, or are required to enter quarantine or self-isolate because of the coronavirus. In these situations, employers and employees are to come to their own arrangement which may include working from home or taking different forms of leave.
When permitting employees to work from home, employers should be mindful of their obligation to provide and maintain a safe working environment and should undertake a risk assessment.
Where an employer directs a full-time or part-time employee to stay home in line with the Australian Government’s health and quarantine advice, and the employee is not sick with coronavirus, the employee should ordinarily be paid while the direction applies.
However, if an employee cannot work because they are subject to a government order requiring them to self-quarantine (and working from home is not practical), the employee is not ordinarily entitled to be paid. This is because their inability to work is because of a government order, not the employer.
Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of equipment breakdown, industrial action or a stoppage of work for which the employer cannot be held responsible. The most common scenarios are severe and inclement weather or natural disasters. Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has the coronavirus.
Employers should always consider whether their obligations are impacted by any applicable enterprise agreement, award, employment contracts or workplace policies which may be more generous.
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