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COVID LOCKDOWN Q&A’s for Business Owners

Employment Law

We provide answers to questions recently received from business owners regarding staff issues arising from the COVID Lockdown.

Q: When can I insist that an employee come to the workplace?

There are five key considerations that would prevent you from insisting your employees attend the workplace.

First, if they can reasonably do their work remotely, the employer has no discretion – they must direct the employee to work from home.

Second, if the employee lives in one of the LGAs under specific lockdown, and the workplace is outside of that LGA, the employee must not be allowed in the workplace unless they are an authorized person under the current public health orders.

Third, if the business is not allowed to be in operation under current health orders, then employees can’t be required to work.

Fourth, if the employer cannot ensure the safety of its staff, such as where social distancing is not possible, it would not be appropriate to insist on workers attending work.

Finally, employees showing any symptoms which could be COVID-related (whether or not they have returned a negative result), or who are required to isolate due to association with a site or close contact, they cannot be required to attend work.

Outside of the above constraints, as at date of publication, it is lawful for an employer to insist that their employees attend work.

Q. Can I force employees to reduce their hours of work and therefore reduce their pay if there has been a business downturn due to COVID?

Because of the temporary nature of the current situation, we recommend that business ownersexperiencing a downturn should approach employees and request they vary their contracts of employment to accept a reduction in hours, with a corresponding reduction in pay. Remember that the employment relationship is a symbiotic one, with give and take from time to time.

However, if the employee can lawfully attend work, a business cannot unilaterally decide to reduce the hours and pay of its employees. Forcing such a change on an employee will be a breach of the employment contract – unless a business is able to lawfully stand down the employees without pay under the Fair Work Act or via a clause in an award, enterprise agreement or contract of employment. (See below for more information on stand downs).

Similarly, while a business may approach and request an employee to consider taking annual leave or long service leave, an employee cannot be forced to use accrued leave entitlements – unless a modern award or enterprise agreement provides for situations where employees can be directed to take annual leave (note however that these are usually limited to Christmas shutdowns or where there is excessive annual leave).

Unfortunately, in some circumstances, a business may also need to consider whether it needs to consider implementing redundancies if staff won’t consider a temporary voluntary reduction in hours and there is an urgent need to reduce running costs.

Q. Do I have to keep paying staff who are otherwise healthy, but who cannot attend work due to NSW health directives, and who cannot perform their job at home?

The current position being adopted by the Fair Work Ombudsman appears to be that where an employee cannot attend work due to an Enforceable Government Directive and must isolate or quarantine, and if they cannot work remotely from home, an employer will not have to pay ordinary wages – unless an award or enterprise agreement or employment contract provision provides otherwise. It is therefore important to check industrial instruments and employment contracts before making any decisions.

The same principles will invariably apply to situations where a worker cannot leave their LGA to attend the workplace, and where they also cannot perform work remotely from home. That said, the particular facts and circumstances in each situation will be relevant in determining if an employee should be paid.

An employee can also request to utilize accrued annual leave or long service for such periods, and a number of modern awards have been temporarily amended during COVID to enable workers to take annual leave at half pay if the employee wishes to manage the situation that way.

Q. What equipment must I provide to enable my employee to work from home?

We advise employers to practice common sense when considering work-from-home arrangements. Usually, it will make good business sense to support staff with the loan of laptops and any other basic office equipment. As most people these days are already on phone and internet plans, the employer should only reimburse employers for such expenses incurred in excess of what the employee would otherwise already be paying for themselves. 

If work from home arrangements become longstanding in nature, running into a number of months, then it would be prudent for employers to check that staff are working from home in a setting that is ergonomically suitable to avoid the potential for repetitive strain injury, bearing in the mind that an injury suffered whilst working from home still constitutes a workplace injury for the purposes of the workers compensation regime.

Q. What is pandemic leave and when can it be taken by employees?

Many modern awards contain temporary provisions to enable workers to access up to two weeks unpaid pandemic leave if “the employee is required by government or medical authorities or on the advice of a medical practitioner to self-isolate and is consequently prevented from working or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.”

Unpaid pandemic leave can also be extended by agreement between the employee and employer.

Essentially, the benefit of describing leave as “pandemic leave” is that it assures the employee that they remain employed with the company, their position is simply on-hold until after the pandemic emergency passes.

Q. Do I have to keep paying staff who have contracted COVID, or who staying away from work because they have medical symptoms which could be COVID-related?

If a worker is ill from having contracted COVID-19 and is required to isolate, they would be entitled to use their paid personal (sick) leave in such circumstances. If insufficient personal leave is available, the employee is usually able to call upon annual leave entitlements to tide them over. It is unlawful to terminate an employee due to temporary illness or incapacity and so in circumstances where the employee had exhausted all paid leave options, they would be on unpaid leave until fit to return to work.

Q. Are there any specific legislative provisions allowing businesses to stand down large numbers of staff without pay?

Pursuant to section s 524(1) of the Fair Work Act, a business may stand down employees without pay if the employees cannot usefully be employed because of one of the following circumstances:

(a)   industrial action (other than industrial action organised or engaged in by the employer);

(b)   a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown;

(c)   a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Where a business has been forced to shut down or partially shut down under a public health order it may be able to utilize section 524(1)(c) of the Fair Work Act to lawfully stand down its employees, so long as it can establish:

  1. There is a stoppage of work;
  2. The stoppage of work is outside the control of the employer and the employer cannot be reasonably held responsible for it; and
  3. The stood down employees cannot be usefully employed because of the stoppage.

There are strict rules that apply when standing down employees under the Fair Work Act – and a business should consult with employees first before implementing any decision to stand down employees under the Fair Work Act.

An employee continues to be employed during a period of stand down, and entitlements continue to accrue. Employees must also be paid for public holidays that fall within the period of being stood down. If an enterprise agreement or a contract of employment provides a different stand down rule, then that will apply over the Fair Work Act provision. Enterprise agreements, awards and contracts of employments may also require consultation before implanting a stand down.

Q. In which industries are COVID vaccinations now compulsory?

At this stage, there are only very limited circumstances in which legislation expressly requires employers to ensure that their staff are vaccinated. Mandatory vaccination has been implemented in NSW Public Health Orders of 28 June 2021 for designated airport workers, quarantine facility workers and transport providers. On 28 June 2021, the National Cabinet agreed to mandate that all residential aged care staff receive at least the first dose of a COVID-19 vaccine by mid-September 2021.  This has not yet been legislated in NSW but is anticipated to be implemented by a Public Health Order within the next week.

Q. Can I require my staff to be vaccinated against COVID if my business is not part of the compulsory vaccination laws?

Whether an employee is required to be vaccinated, either against COVID-19, influenza or any other illness will involve carefully considering the facts and circumstances of the business and the individual circumstances of its employees. Whether or not a business can lawfully and reasonably direct its staff to get vaccinated will depend on the circumstances of the company and its need to ensure a safe workplace. If vaccinations are necessary to keep the workplace and public safe, then ultimately an employer may be able to override its employees’ individual freedom to choose whether or not to be vaccinated. Some factors to consider include:

  • The nature of the work being performed;
  • Whether the clients or stakeholders of the business are vulnerable or at risk;
  • Whether safety risks can be mitigated in other ways. For example, implementing strict hygiene procedures, social distancing, use of PPE and strict sick leave procedures;
  • Whether the employee can perform the inherent requirement of the role without being vaccinated; and,
  • Whether such a policy is likely to breach anti-discrimination law

We recommend that you seek specific advice about this in context of your specific business operations.

Q. Have there been any court cases about compulsory vaccination?

At this point, mandatory COVID-19 vaccination policies remain untested in the caselaw. However, earlier this year the Fair Work Commission handed down some useful decisions regarding employers and compulsory flu vaccination.  In the case of Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818, a receptionist working in an aged care residential facility implemented a compulsory influenza vaccination policy for all staff. At the time, the NSW Public Health order prohibited persons entering a residential aged care facility unless they had received a current vaccination against influenza. The receptionist at the facility had not been vaccinated and, after her employment was terminated, lodged an unfair dismissal claim. The Commission found that her dismissal was not unfair. Given the NSW Public Health Order, the receptionist was not able to lawfully enter her place of work unless vaccinated and therefore could not perform her role. In that case, vaccination was an inherent requirement of the role. Once the NSW Public Health Order comes into effect, it is likely that vaccination against COVID-19 will be an inherent requirement of the role for all staff of residential aged care facilities.

Even if vaccination is not an inherent requirement of the role, it may nevertheless be a lawful and reasonable direction to require employees to be vaccinated against COVID-19. In certain circumstances, a lawful and reasonable direction for staff to get vaccinated may be given after completion of a workplace risk assessment. For example, in the case of Barber v Goodstart Early Learning [2021] FWC 2156, a lead educator at a childcare centre was dismissed due to her refusal to comply with a vaccination policy directing staff to receive an annual flu vaccine. The Commission held that whilst being vaccinated was not an inherent requirement of her role, it was a lawful and reasonable direction given Goodstart’s obligations under the relevant Work, Health and Safety laws to protect its staff. Given Goodstart operated in an industry where safety was paramount. The Commission also relied on government recommendations which advocated for all childcare staff to receive the flu vaccine.  In those circumstances, the immunisation policy was within the scope of the employee’s contract and was not unlawful.

The case of Barber is instructive for businesses when considering whether to implement a COVID-19 vaccination policy. If your employees work in environments where the risk of transmission is high, or work with vulnerable people where the risk of disease is high, mandatory vaccination may be reasonable if the risk cannot be controlled by other measures.

Q. How do I manage an employee who refuses to get vaccinated against COVID-19, and where they cannot safely do their job without that vaccination?

This issue should be addressed in the same way that an employer handles an employee’s failure to follow any other reasonable and lawful directive.

Procedural fairness dictates that the employee be clearly told what the consequences will be if they refuse to comply, which may include the termination of their employment. The employee should be given time to consider the situation rather than bullied or pressured. We also recommend that employers offer to pay for vaccine for hesitant staff to see a GP to get medical advice on their situation, as this may help the employee concerned to see the benefit of vaccination not only to protect their employment, but also for their own safety, and the safety of their family and friends.

If you are considering implementing a mandatory vaccination policy for your business or are handling a specific situation involving a staff member refusing to be vaccinated, we recommend that you seek specific legal advice from our employment law team.

The author wishes to acknowledge the significant contributions to the article from employment lawyers Andrew Crowley and Victoria Quayle.

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