Understanding your rights and obligations as an employer during COVID-19

By Ben Ryan, Lawyer at Hillhouse Legal Partners
| 5 min. read

Key takeaways

  • To protect yourself and your business, it is important that you know what your rights and obligations are as an employer, as well as your employees’ rights and obligations. 
  • All actions must be undertaken with an understanding of employment law generally or you risk making serious legal errors which have serious legal consequences. 
  • It is imperative you do not have a “set and forget” mentality when it comes to managing your business and your employees as laws are changing almost daily.

COVID-19 has changed almost every aspect of running a business, but the law is often slow to catch up with the real world and particularly the uncertainty of a pandemic. 

Many business owners who are employers have struggled to understand what is required of them in relation to their employees and it is easy to become complacent in the workplace when many staff are still working from home or staggering their return to the office.

To protect yourself and your business moving forward, it is important that:

  • You know what your rights and obligations are as an employer.
  • You know your employees’ rights and obligations.
  • You have a plan if COVID-19 enters your workplace.
  • Your business is correctly structured to give you the best chance of getting through this pandemic. 

Your rights and obligations as an employer during COVID-19.

Q. Can I make my employees take a COVID-19 test?

A. Generally, you can only require an employee to undergo a medical examination (including a COVID-19 test) if they consent.

Q. Can I make my employees return to work?

A. An employee cannot refuse to return to work if you have given a reasonable and legal direction. However, an employee can refuse to return to work if they hold a reasonable concern about their health or safety. If an employee refuses a reasonable direction to return to work and it is safe to do so, you may be able to take disciplinary action against them.

Q. What are my options if I am unable to keep all my employees?

A. Your practical options are generally:

  • Reduced hours.
  • Pandemic leave.
  • Standing down employees.
  • Redundancy

However, all of the above options must be undertaken with an understanding of employment law generally or you risk making serious legal errors which have serious legal consequences. For example, with redundancy, you will not be able to re-employ someone in the same position post-COVID-19 or the redundancy will not be genuine and you may face legal action by the redundant employee

Q. What are my employees’ rights and obligations during COVID-19?

A. Generally, your employees are entitled to:

  • Personal/carers leave, if they or someone they care for has COVID-19. If they do not have any available personal leave, you are obliged to provide two extra unpaid days of carer’s leave.
  • Work from home at your direction and to be paid for work performed at your direction.
  • Take paid annual leave.
  • Request flexible working arrangements; or
  • Reasonably refuse to return to the office for health and safety concerns.

Click here to read more about employee working arrangements.

You must still comply with the Fair Work Act 2009 (Cth), Government health directives and relevant Awards and employment agreements.

Click here to read more about treatment of employees during COVID-19.

It is imperative you do not have a “set and forget” mentality when it comes to managing your business and your employees. Laws are changing almost daily, so you must keep abreast of any changes as they are made and proactively address any potential risks to your workplace. Hillhouse Legal Partners can assist you with this.

If you have any questions about employment law and commercial leasing during COVID-19, click here to find out more.

What to do in the workplace if you have COVID-19 or you suspect an employee has COVID-19?

  • If you suspect you have COVID-19, you must immediately self-isolate and inform your employees and anyone you have had recent contact with. You should seek medical attention as soon as possible to arrange for testing.
  • If an employee has, or suspects that they have, COVID-19 or that a co-worker has been exposed to COVID-19, they must immediately contact you or a designated person.
  • If any employee is in a group identified as high risk for developing serious illness or death if exposed to COVID-19, they should notify you immediately and arrangements should be made to minimise their risk.
  • Follow your COVID-19 plan.

The currently extraordinary circumstances we find ourselves in make navigating this landscape even more onerous. Please contact Hillhouse Legal Partners if you have any questions or queries on how you can make sure you comply with all employment obligations. 

Advice, compliance and timing of actions are critical. We are here to help.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.