Coronavirus and Australian workplace laws

In the face of the coronavirus (COVID-19) outbreak, employees and employers must be aware of their entitlements and obligations, as per workplace health and safety laws. SAFETY SOLUTIONS outlines advice provided by the Fair Work Obudsman.

Under workplace health and safety (WHS) laws, employers can direct employees to stay away from their usual workplace. Employees who are sick with the coronavirus cannot attend the workplace for a period, due to WHS legal obligations. Employers can direct employees who have contracted coronavirus not to come to work and to get medical clearance from a doctor before returning to work. Employers can also direct employees not to undertake work-related travel if this is necessary to meet WHS obligations or is otherwise a lawful and reasonable direction. Employers are unlikely to be able to direct an employee not to undertake private travel. Full-time and part-time employees who cannot come to work because they are sick with coronavirus can take paid sick leave; employees who need to look after a family member or a member of their household who has coronavirus are entitled to take paid carer’s leave.

Employers cannot require an employee to take sick or carer’s leave; however, in these circumstances the employee is not entitled to be paid unless they use their paid leave entitlements. Under the Fair Work Act, casual employees are entitled to two days of unpaid carer’s leave per occasion. Full-time and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left. Employers are urged to consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous. If asked, employees must provide evidence of the illness to their employers — this applies to situations pertaining to coronavirus. Under the Fair Work Act, employees are protected from being dismissed due to a temporary absence due to illness or injury.

Workers stuck overseas

Employees who are stuck overseas and cannot return to work should immediately contact their employer, and are required to enter quarantine or to self-isolate because of the coronavirus. The Fair Work Act does not have specific rules for these kinds of situations, so employees and employers must come to their own arrangement. This could include working from home or another location, taking sick leave if the employee is sick, taking annual leave or taking any other leave available to them (eg, long service leave). Employers can also arrange any other paid or unpaid leave by agreement with employees. Employers who direct full-time or part-time employees who are not sick with coronavirus to stay at home in line with advice such as the Australian Government’s health and quarantine advice should pay their employees while the direction applies.

Employees who cannot work due to travel restrictions (eg, they are stuck overseas) are not entitled to be paid (unless they use paid leave entitlements). Employers should consider whether their obligations are impacted under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies. Employees who want to stay at home as a precaution must come to an arrangement with their employer that suits their workplace, such as making a request to work from home or to take some form of paid or unpaid leave, such as annual leave or long service leave. 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.

Working from home and leave entitlements

Under WHS laws, employers must ensure the health and safety of their workers. Employees at risk of infection from coronavirus (eg, if they have recently travelled through mainland China, Iran, the Republic of Korea or Italy, or been in close contact with someone who has the virus) should seek medical clearance from a doctor and work from home, or not work during the risk period. If an employer directs a full-time or part-time employee not to work due to WHS risks, but the employee is ready, willing and able to work, the employee is entitled to be paid while the direction applies. 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. Standing down employees without pay is generally not available due to a deterioration of business conditions or because an employee has the coronavirus.

Working from home arrangements are usually agreed between an employer and employee. Employers should consider the nature of the work involved and the suitability of the employee’s home. WHS laws still apply even when an employee is working from home. Where employees are required to record their hours of work (eg, in relation to annualised wage arrangements), this needs to continue when they are working from home. Casual employees do not have paid sick or carer’s leave entitlements under the National Employment Standards and usually are not entitled to be paid when they do not work. Casual employees are paid a casual loading instead of paid leave entitlements. Independent contractors are not employees and do not have paid leave entitlements under the Fair Work Act. However, there are special provisions that deem contract outworkers in the textile, clothing and footwear industry to be employees for the purposes of most protections under the Fair Work Act. Where these provisions apply, the contract outworker should be treated as an employee.

Some employers may need to make employees’ positions redundant in response to a business downturn. If an employee’s job is made redundant, their employer may have to provide redundancy pay. The Fair Work Act has requirements that employers have to meet before they can terminate an employee’s employment, such as providing notice. Under the Fair Work Act, an employee is protected from being dismissed because of a temporary absence due to illness or injury. The Fair Work Act also includes protections against being dismissed because of discrimination, a reason that is harsh, unjust or unreasonable or another protected right. These protections continue to operate in relation to employees impacted by coronavirus.

Further resources

Employers and employees seeking information about workplace entitlements and obligations in the face of the coronavirus (COVID-19) outbreak are encouraged to refer to the Australian Government Department of Health for the latest information on the virus. Employers and employees must work together to find appropriate solutions that suit the needs of individual workplaces and staff; this may include taking different forms of leave, working from home or taking extra precautions in the workplace. For further information about workplace entitlements, health and safety in the workplace and the legal obligations of employers and employees, refer to your state or territory Public Health Unit’s website, Safe Work Australia, Comcare (Commonwealth) and Smart Traveller. Safe Work Australia has more information for businesses, with further resources provided by state or territory workplace health and safety bodies at www.safeworkaustralia.gov.au/doc/coronavirus-covid-19-advice-pcbus.

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