Managing employer responses to the Coronavirus

The Novel Coronavirus (COVID -19) was first reported in December 2019 in Wuhan City, China. Since then, the virus has been declared by the World Health Organisation as a public health emergency.

Many employers now face the question of how to respond to the unfolding outbreak and need to determine appropriate solutions for their staff and workplace.

Who is impacted and how?

The Department of Health has advised that individuals who have recently returned from mainland China and or had contact with a person with the virus are recommended to self-isolate or quarantine for a period of 14 days. This involves not going into public places or wearing a surgical mask where needing to leave home. However, a number of sources now say the incubation period can be 28 days of more so employers should keep updated on any changes to the current advice from the Department of Health.

Individuals who have travelled to other countries of interest as determined by the World Health Organisation are not required to self-isolate unless they have transited through mainland China or had contact with a confirmed case.

What should employers be doing?

As Australian employment laws do not contemplate the situation created by the Coronavirus, the Fair Work Commission (FWC) has advised that employees and employers should negotiate their own terms as to leave or flexible working arrangements. Where possible employers should attempt to reach agreements with employees rather than directing them to take action which may be in breach of the employment contract or legislation.

Employers are under a legal obligation to ensure the health and safety of everyone within their workplace. As such, it is prudent that employers undertake a review of organisational policies, relevant industrial instruments and employment agreements to identify the right approach to managing employees impacted by the Coronavirus.

The FWC has released guidelines as to how employers should handle circumstances in which an employee or their family members have been diagnosed with the virus, suggesting such employees take paid sick leave or alternatively, paid carer’s leave where a family member is impacted.  This leave can be taken unpaid where paid leave is exhausted. However, an employer may not be able to compel an employee to take such leave against their will. In such circumstances employers should obtain legal advice about the potential risks of enforcing such a request. Policies as to leave and workplace health and hygiene should be updated where required.

Alternatively, where suitable an employer may implement a flexible working arrangement whereby the employee is allowed to work from home or an alternative location to the workplace. Where an organisation does not have policy or other provisions in place to enable such flexible arrangements, such documents should be developed. Health and safety obligations and liabilities for injuries can still apply when an employee is working from home so we recommend employers have policies dealing with health and safety obligations for employees while working at their residence.

An employer may request that an employee obtain medical clearance before permitting the employee to return to work where they develop a fever, cough, runny nose, shortness of breath and other symptoms and have travelled in mainland China or a county of interest. Where an employee wishes to stay home as a precaution, they will need to seek appropriate leave. In addition, employers can consider seeking advice from medical professionals to issue clear information and implement effective policies on hygiene practices and methods to prohibit the spread of the virus. Employment contracts should have provisions requiring medical examination in case employees refuse such requests.

If an employee refuses a request to work from home or to remain away from the workplace or attend a medical examination, an employer may breach their employment contract by requiring them to do so. In such circumstances employers should obtain legal advice about the potential risks of enforcing such a request.

Discrimination

Employers should be careful to balance their health and safety obligations to ensure the health and safety of all employees against a risk of practices which unlawfully discriminate against employees or harass them on the grounds of race. Employers will be vicariously liable for the conduct of their employees who discriminate against or harass other employees, unless the employer can show it has taken reasonable steps to avoid the conduct. Reasonable steps include:

• having a policy which deals with discrimination and unlawful harassment;
• having a procedure to handle complaints of unlawful discrimination and harassment;
• conducting training on those policies and procedures; and
• acting promptly in relation to any complaints of unlawful discrimination in accordance with the appropriate policies and procedures and then taking actions to avoid such conduct occurring again.

Employers can minimise the risk of unlawful discrimination claims by ensuring that any decisions made as to a workers’ attendance or requesting medical clearance are consistent with publications of the Department of Health.

Travel

In addition, in discharging their obligations regarding health and safety of their employees, employers should refer to the Australian Department of Home Affairs (ADHA) and Smart Traveller in determining the safety and viability of work related travel to or through mainland China, South Korea, Japan and northern Italy. As of 24 February 2020, ADHA announced that Australia would deny entry to anyone who has left or transited through mainland China within the previous 14 days with the exception of Australian citizens, permanent residents and some others. All travellers will be subject to increased border protection measures on entry. This has potential implications for visa applicants.

Employers should exercise caution in forbidding non work related travel to China for risk of indirect discrimination.