Unfortunately, a number of major Australian business such as Qantas are being forced to lay off employees because of COVID-19. As a small or medium business owner, you may also have to consider this option. Before taking those steps you need to understand that there are strict laws relating to how you treat your employees.
While you should seek specific legal advice if you intend to take any action with employees, generally speaking this is the legal landscape as of 20 March, 2020:
If an employee is sick with COVID-19 or they have a relative they need to care for (including looking after a child who has been sent home from school) then they are entitled to take personal/carer's leave.
An employee who has exhausted their paid personal leave entitlements is entitled to a further two days of unpaid carer’s leave.
It is suggested that, given that COVID-19 is a pandemic, employers should allow leave and delay the requirement for proof at this time.
If you direct an employee to work from home and the employee is ready, willing and able to work, then they are entitled to be paid.
Under the Fair Work Act, in certain circumstances it may be reasonable for an employer to direct or require that an employee take paid annual leave, including when the employer is temporarily shutting or closing its operations or workplace.
If an employee has been directed by the government to self-quarantine, the employer generally does not have to pay the employee (subject to the employee using any leave entitlements).
If the employer is unable to accommodate paid leave then consideration should be given to granting the employee access to accrued annual leave entitlements or long service leave entitlements (if any).
If employees are working from home, you will need to ensure that Workplace Health and Safety requirements and measures are in place for their home workplace.
During these uncertain times, the Federal and State Governments may implement special assistance to help employers and employees.
If you need to terminate an employee because of a downturn in business, you still need to follow the Fair Work Act, the relevant Award and the terms of employment agreements (if any).
Subject to the employment agreement and Awards, you will need to give notice and most likely pay redundancy pay to any employees who have to be permanently dismissed. You may need to consult with employees prior to making any major decisions in this regard.
You must also be very careful not to dismiss employees because of a temporary absence due to illness or injury, or discriminate against someone who has COVID-19. If you do, the employee may bring a claim alleging unfair dismissal or sue for breach of a general protection or adverse action under the Fair Work Act.
Subject to any employment agreement, under section 524 of the Fair Work Act an employer can stand down an employee due to a stoppage of work for any cause which you, as the employer, cannot reasonably be held responsible. If you do stand employees down under that section, then you are not required to make payment to your employees for that period.
It should be noted that the courts and tribunals have interpreted this section very strictly against the employer and this current situation is untested.
It is important for employers to remain transparent and constantly communicate with employees about any new measures that are being implemented.
Advice should be sought before any permanent measures are taken. It is vital for employers to ensure that they are not negating any government assistance they may be entitled to receive or, more importantly, breaking the law or breaching an agreement.
Employers have a duty of care to ensure their employees (and others such as guests, contractors, students and volunteers) are safe at the workplace.
If an employee is working from home, then their workplace will be their home.
As part of an employer’s duty of care they may have to:
Giving the evolving landscape, employers should advise their employees that:
An Employer cannot require an employee, worker or visitor to their premises to undergo a medical examination, including the taking of a temperature, without that person’s consent. Without consent there may be an assault committed, a breach of the employment contract or the Fair Work Act. However, as an employer you could insist on a medical certificate/clearance if an employee has been in isolation or if the employer is certain they have contracted the virus.
The employer should also advise employees about how to reduce the spread of COVID-19 in the workplace, such as encouraging social distancing, undertaking additional cleaning at the workplace and supporting good personal hygiene.
Employers also need policies as to what they need to do if an employee displays symptoms at work and what will happen if the employer needs to fully or partially close the workplace.
This is an incredibly complex and nuanced area of the law generally. The currently extraordinary circumstances we find ourselves in make navigating this landscape even more onerous. Please contact us to discuss any questions or queries. 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.