COVID-19 – Essential Information for Employers

Quick Summary

1.   What do I do if an employee is infected?
2.   What are employee’s entitlements whilst working from home?
3.   Can I change or reduce my employee’s hours?
4.   Can I stand down employees?
5.   Can I dismiss employees?

Managing COVID-19 in the workplace

Employers must have measures in place to eliminate or manage the risks arising from COVID-19.  This includes implementing good hygiene practices in the workplace.

An employer can direct an employee to work from home if:

1.     the employee is infected or has come into contact with someone who has been infected;
2.     the employee has cold or flu symptoms; or
3.     any of the above applies to other employees.

Also an employee can direct all employees to work from home if directed to do so by Government officials.

If employees are working from home it is recommended that you ask the employees to assess their home working space to ensure that it is a safe working environment as employers will remain liable for injuries sustained by employees who are working from home.

We can provide you with a checklist for employees to assess their home working space and report back to you.

What happens if an employee is infected?

The Fair Work Act does not have specific rules for these kinds of situations so employees and employers need to come to their own arrangement. This may include:

1.     working from home or another location (if this is a practical option), noting they should review any applicable enterprise agreement, award, employment contracts or workplace policies;
2.     taking sick leave if the employee is sick;
3.     taking annual leave;
4.     taking any other leave available to them (such as long service leave or any other leave available under an award, enterprise agreement or employment contract);
5.     arranging any other paid or unpaid leave by agreement between the employee and the employer.

What are employees’ entitlements whilst working from home?

Where an employer directs a full-time or part-time employee to stay home in line with advice such as the Australian Government’s current health and quarantine advice, and the employee isn’t sick with coronavirus, the employee should ordinarily be paid while the direction applies.

However, if an employee cannot work because they’re subject to an enforceable government order or direction requiring them to self-quarantine, the employee isn’t ordinarily entitled to be paid (unless they use leave entitlements). In this case, their inability to work is because of a government order or direction, not because of their employer.

Employees who want to stay at home as a precaution (but who are not directed to by their employer or as a result of an enforceable government order or direction) need to come to an arrangement with their employer that best suits their workplace.

Can I change employee’s regular hours or wage?

Employers need to consult employees about a change to their regular roster or ordinary hours of work under their award or enterprise agreement. In particular, employers have to:

1.    provide information about the change;
2.    invite employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities);
3.    consider their employees’ views about the impact of the change.

Awards and enterprise agreements may also set out extra rules about changing rosters or ordinary hours of work.

Changes to an employee’s start and finish times (for example, in order to avoid crowds during peak hours) might be possible under the span of hours provisions in an award or enterprise agreement. Some awards and enterprise agreements also allow the span of hours to be varied by agreement.

Reducing a permanent employee’s ordinary hours usually requires the employee’s agreement.

Can I stand down employees?

Employers and employees are encouraged to work together to find appropriate solutions that suit the needs of individual workplaces and staff.

Under the Fair Work Act, an employee can only be stood down without pay if they cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Whether the option of standing down employees is available is very fact dependent and an employer should exercise the option cautiously. The employer must be able to demonstrate that:

1.   there is a stoppage of work;
2.   the employees to be stood down cannot be usefully employed (which is not limited to the work an employee usually performs);
3.   the cause of the stoppage must also be one that the employer cannot reasonably be held responsible for.

If an employer unlawfully stands down employees without pay, the employees will likely be able to recover unpaid wages.

Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.

Some examples of when employers may be able to stand down employees include:

1.   if there was an enforceable government order or direction requiring the business to close such as what has occurred in the hospitality industry (which means there is no work at all for the  employees to do, even from another location);
2.   if a large proportion of the workforce was required to self-quarantine with the result that no useful work was able to be performed in the business by the remaining employees/workforce;
3.   if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.

Standing down an employee is similar to an employee taking unpaid leave, meaning the employee will continue to accrue leave and other statutory entitlements and once the stand down period has ceased, will be able to return to work on the terms upon which they were originally engaged.

Can I dismiss employees?

Some employers may need to make employees’ positions redundant in response to the business downturn caused by COVID 19. If an employee’s job is made redundant, their employer may have to give them redundancy pay. A small business that employees less than 15 employees does not have to pay redundancy.

Employees cannot claim unfair dismissal for termination due to a business downturn  or if their position no longer exists. In such circumstances, the employer should be able to demonstrate that there has been compliance with the duties of the relevant industry award or enterprise agreement. Additionally, the employer should exhaust attempts to redeploy the employee elsewhere in the business. However, filling the former employee’s position with a new employee is not a genuine redundancy.

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.

Can I dismiss casual employees?

Many small businesses hire employees on a casual basis. Due to the nature of casual employment, casual employees are not entitled to redundancy pay. However, if a casual employee has been working at your business for more than 12 months, they may be able to claim leave entitlements or long service leave if they have been employed for 10 years or more.

If you are considering terminating any of your employees’ employment because of COVID-19 we recommend that you contact us first for advice.

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