5. Managing COVID-19-Related Employee Issues

Management of quarantine, childcare and medical leave for employees affected by COVID-19. 

• On JobKeeper: As part of the Australian Government’s JobKeeper scheme, a qualifying employer can:
  • request an eligible employee to take paid annual leave (as long as they keep a balance of at least 2 weeks)
  • agree in writing with an eligible employee for them to take annual leave at half pay for twice the length of time.
• Sick leave: as paid sick leave covers only situations where an employee has illness, including COVID-19, employees cannot take sick leave for compulsory or voluntary self-isolation if they are not sick with any illness or injury. They can take sick leave in these occasions if they are sick with illness or injury.
• Compulsory or voluntary self-isolation: employees must use their annual leave entitlements or take unpaid leave if they do not have annual leave available. This covers employees who are not sick and required to self-isolate because they have come into contact with a case of COVID-19 or have returned from overseas.
• Childcare: employees can use paid carers leave to take care of children if schools or childcare centres close, or if their child is sick.
  • If an employee is on Parental Leave Pay, and their employer cannot continue to afford to pay them because of the impact of COVID-19, the employee can apply to the Government to receive their Parental Leave Pay.
  • Notably, from 6 April 2020, the Australian Government implemented the Early Childhood Education and Care Relief Package. This means that between the period 6 April 2020 to 12 July 2020, families have not been charged fees for early childhood education and care. This has lessened the need to take childcare leave for employees. 

Employees who fear infection and refuse to work. 

• Employers should first and foremost develop a COVID-19 plan (see 4 and 5). This means adhering to the four-square-metre rule and compliance with other WHS laws.
• Any employee who refuses a lawful and reasonable direction to return to work is in breach of an implied term of employment: Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.
  • A direction will be considered ‘lawful’ if it does not involve illegality, and falls within the scope of the employee’s employment (King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194 , [27]). Notably, a direction could be construed as unlawful if it would create risks to WHS. Thus, it is crucial for employers to develop and follow a COVID-19 Safe plan.
  • Whether a direction will be considered reasonable is based on the express and implied terms of the contract, nature of employment, established custom and relevant instruments (CFMEU v Glencore Mt Owen Pty Ltd [2015] FWC 7752). It may be considered reasonable in some instances to give a direction to go back to work, such as those roles that need physical presence (such as hospitality staff), but not reasonable in others (in white collar professional roles where work can be easily performed from home).

• • If an employer refuses a lawful and reasonable direction, it may provide a valid reason for dismissal of the employee under the Fair Work Act 2009 (Cth). An employer can also discipline an employee or decide to take no action.
• Alternatively, employers can direct employees to use their paid and unpaid leave entitlements.

Disclosure of employees who are infected. 

• Safe Work Australia has outlined the Steps an employer must take when responding to an incident of COVID-19 in the workplace, which are as follows:
  • isolate the person;
  • seek advice and assess the risks;
  • ensure the person has transport home, to a location they can isolate, or to a medical facility if necessary;
  • identify and tell close contacts while maintaining the privacy of all individuals involved; and
  • review risk management controls.
• If an employee is infected with COVID-19, employers are directed to call their state or territory helpline and follow the advice of public health officials.
• For assessing the risk to the workplace, workers and others, employers should ensure they have the current contact details for the infected person and make a note about the areas they have been in the workplace, who they have been in close contact with and for how long.