Australia: HWL Client Alert on Work in the Time of COVID-19

The news cycle is abuzz with updates on the outbreak and spread of novel coronavirus. The viral epidemic which started in mainland China has now proliferated worldwide, leading the World Health Organisation to declare an international public health emergency for just the sixth time since 2009.

Along with the humanitarian, health and economic concerns created, a public health epidemic offers unique challenges for employers managing workers returning from at-risk areas. Amongst the panic and concern, it is important that employers act rationally and in full view of their legal obligations, in contract, statute and common law, in dealing with this growing health risk.

In terms of employees returning from at-risk areas, an employer can legally direct that employee to work from home (if possible) or to consult a medical practitioner and provide a medical certificate before they can return to work. Such a direction would be appropriate to respond to a well-founded risk to the safety of other employees. The right of an employer to make such a direction flows from three sources:

• Firstly, it is an implied term of the contract of employment that employers are entitled to give lawful and reasonable directions which must be obeyed by employees.
• Secondly, there is also an implied contractual term that an employer will provide a safe system of work.
• Thirdly, there are statutory obligations to ensure the health and safety of employees at work. For employers under the unified Work Health and Safety Acts, the employer’s primary duty of care under section 19 requires that persons conducting a business, so far as is reasonably practicable, ensure the health and safety of workers at work in the business. Employees have a reciprocal duty.

It would be a lawful and reasonable direction to ask an employee returning from an at-risk area (or who has been in close contact with a person returning from an at-risk area) to work from home or obtain a medical certificate, given the serious safety risks associated with infected employees attending work during a pandemic. An employer should ensure that there are good grounds for the direction: for example, government medical advice during the course of the pandemic, or a medical certificate for a particular individual.

It should be noted that the lawfulness of the direction does not require a specific policy, but is based on the above common law and statutory obligations. It may be useful, however, for employers to update their policies to account for emergencies, such as the occurrence of pandemics or the impact of natural disasters such as bushfires (including the inability to work because of smoke).  This could have the advantage of employees being aware ahead of time about the likely impact if they became caught up in an emergency of any kind. The employer’s position could be strengthened if these issues were addressed in future contracts of employment (seeking to change current contracts could raise issues around breach of contract, so should be left for a future occasion). It should be noted that this change would not be retrospective, but could protect from future pandemics or disasters. Care should be taken to ensure that any policy or contract provision complies with all applicable legislation, for example, the entitlement to leave for voluntary emergency management, or the special provisions applying to members of the Defence Reserve Forces, or the provisions about stand-down, discussed below.

An employer should ensure that they are only restricting the ability of their employees to work in a manner that is consistent with the evidence of risk. The current government health advice is that the virus can have an incubation period of up to 14 days, and it can be transmitted to other people even while the carrier is asymptomatic. This means that isolation of those at risk for the 14 days is advisable, and for longer if symptoms develop. For this reason, the direction to remain away from the business or to work from home should not extend past the incubation period, currently understood to be 14 days.

It must be understood that, in some positions, a direction to work from home during this period would not be lawful. The terms of some contracts of employment may not allow such directions. Some occupations will not safely allow work from home: there is a significant difference, for example, in requiring a person whose work is computer-based and can log on to work remotely from any location to work from home, and making the same requirement of a person whose job it is to solder circuit boards or to assemble heavy machinery. Even if it was physically possible to carry out such work from home, it would not necessarily be safe to do so.

Where an employee cannot work at home (either because of the nature of the duties, or other circumstances) the employer should consult with the employee. It may be possible for the employee to take leave (and in some circumstances, the employer may be able to direct the taking of leave) or be assigned alternative duties. Employers should be wary of merely “standing down” employees without pay as section 524 of the Fair Work Act would not appear to authorise that: while the employee cannot be “usefully employed” if not for one of the reasons given in the section (industrial action, breakdown of machinery or equipment, or stoppage of work). Employers will need to consider the terms of the contract of employment and the terms of any Award or Agreement, and the provisions of other legislation (including Anti-Discrimination legislation) to ascertain whether payment would be required where an employee cannot work.

Employers must also not make directions that would be discriminatory. The request for a medical certificate, or the requirement to remain away from the place of business, should not merely be a knee-jerk reaction to public panic about the virus. An obvious case where an employer’s direction to not attend work would not be reasonable, and in breach of anti-discrimination law, would be where the employer applies a policy to Chinese employees (inconsistently to that applied to non-Chinese employees) irrespective of whether they had travelled to China or had been in contact with potential carriers of the virus. Standing down an employee without pay would also create the risk of breaching disability discrimination legislation, which protects those suffering a disability (including an infectious disease) from suffering a detriment where this was not reasonably necessary to protect the health and safety of the broader office. This risk will be minimized where directions are based on up-to-date medical evidence and consistent with an employer’s work, health and safety duties.

In a broader sense, employers should consider implementing the following actions in the short term, as an absolute minimum:

• provide employees with clear and accurate information in relation to the coronavirus (for example, on the company intranet, employee notice board, in the lunchroom etc.) and to keep this information updated as medical advice changes. Providing a designated place for updates (online or in physical form) or person who is the source of updated information, to avoid employees relying on gossip or hearsay within the office;
• for employers with overseas employees in countries where there have been confirmed cases, provide those employees with detailed information and updates on the virus. Consider whether those employees should be evacuated back to Australia to reduce the risk;
• require employees who are travelling overseas (particularly to China, but not restricted to that country as the virus spreads) to advise HR/management of their itinerary prior to going on leave (this may also be done by requiring this information at the time application is made for annual leave as a condition of granting leave), and require those returning from travel to confirm where they travelled before they return to the workplace;
• require those who have returned from China to remain away from the workplace during the incubation period of the virus, with a medical certificate required prior to return to declare they are fit to work. If at all possible, allow employees (who are well enough to do so) to work from home if they can safely do so. If the work of the employee cannot be reasonably done from home, consult with the employee about the best way to support them during that period (consider alternative duties that can be done from home, leave, etc.); and
• designate an employee (for example, a WHS representative) to regularly review the information on the World Health Organisation website and like sources of reliable information for dissemination to employees and ongoing assessment of risk.

Authors: Greg Robertson & Zeb Holmes

Harmers Workplace Lawyers has a team of employment law specialists readily available to assist you with these and other workplace issues. For more information, please visit www.harmers.com.au.