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What To Do When COVID-19 Keeps Employees From Attending Work
Andrew Byrnes Law Group • April 20, 2020
Novel Coronavirus, also known as COVID-19, is a worldwide crisis currently occupying the forefront of everyone’s minds. As it infects more and more Australians, it has made a serious impact on our daily lives. For some, it is an inconvenience stopping them from going about their day-to-day lives, while for others, it is a waking nightmare.
One major concern business owners are now facing as a result of the current pandemic is whether their businesses will be able to pull through. Dwindling product demand and uncertainty have cast a shadow on many companies’ futures, leaving many employees wondering whether they will still have jobs when this is all over.
While some companies are fortunate enough to be able to operate as they usually would, the same isn’t true for all businesses. With less revenue coming in, many businesses have had to take extreme cost-cutting measures—many of these pertaining to labour costs. This may be crucial for ensuring that the business survives this period, but failing to go about it properly could result in legal action being taken against an employer. This is particularly true when someone suspects or confirms a coronavirus infection.
In order to ensure business longevity, employers need to know what they can do (legally) when COVID-19 affects employees’ ability to work. For the sake of keeping this article succinct, this brief guide only considers permanent employees and generally assumes that while you may be looking to minimise labour costs, you’re looking to keep your employees on for as long as possible. Without further ado, here’s what you can do when COVID-19 keeps employees from attending work:
When an Employee is Infected With Coronavirus
When an employee is infected with coronavirus or suspects an infection, they should take sick leave. Once this is exhausted, they can consider taking annual leave, paid personal leave (if applicable), or unpaid personal leave. You can also choose to offer paid special leave. Whether or not you choose to grant paid leave, how much you want to pay, and how long you are willing to pay it is entirely at your discretion.
When an Employee is Caring for Someone With Coronavirus
When an employee is caring for someone infected with COVID-19, consider whether they can and wish to work from home. If this isn’t an option, your employee may take carer’s leave. After this is exhausted, they can opt for taking annual leave, paid personal leave (if applicable), or unpaid personal leave. If their loved one is in critical condition, your employee may also be eligible for compassionate leave, depending on your company’s policy.
When an Employee is Advised to Self-Isolate
Employees who have been asked to self-isolate after returning from a country with confirmed COVID-19 cases or after coming into contact with someone who might have been infected should request to stay home. Employers should have them work from home if possible. Otherwise, discuss having the employee take annual leave, paid personal leave (if applicable), or unpaid personal leave for the duration of their self-isolation instead.
When an Employee Asks to Stay Home
If there is no real risk of infection at work and lockdown measures have not been imposed in the locality, employers must exercise discretion. Consider discussing the option to work remotely (if possible) or having them take another form of accrued leave. That said, you are not necessary obliged to permit employees to stay home if they are not at risk. Failure to attend work would then simply be considered unauthorised absence without pay.
Are there any special provisions I am obligated to provide my employees?
As of April 8, 2020, the Fair Work Commission approved unpaid pandemic leave in awards to minimise the coronavirus’s impact on jobs. Employees are now entitled to two weeks of unpaid pandemic leave if they are required to self-isolate or if their jobs are temporarily redundant as a result of government measures. There are several other awards that various employers and employees can read up here to see if it applies to their individual circumstances.
Conclusions
It’s vital for employers to remember that the protections relating to discrimination, as defined by s.351 of the Fair Work Act 2009, applies even in the face of a pandemic. This means that you may face an adverse action claim if you dismiss an employee for discriminatory reasons, such as for contracting COVID-19 or belonging to a certain ethnic group. Consider the legal measures presented above to manage the situation, reduce labour costs if necessary, and ensure your employees are safe.
Andrew Byrnes Law Group are experienced commercial lawyers and employment lawyers serving Canberra and the surrounding areas including Queanbeyan, Goulburn, and Wollongong. Whether you’re seeking guidance regarding the legal obligations you have to your employees or seeking representation for a case, get in touch for a no-obligation professional consultation.
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