Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Updated: March 31, 2020
The spread of the novel coronavirus (COVID-19) across the globe remains a significant concern in the workplace. Employers are confronting difficult questions regarding how to handle safety and health rules, travel restrictions, leave and accommodation, immigration, and other employment issues. The following Frequently Asked Questions (FAQs) are designed to address some of the more common questions that employers with operations in Australia currently face. Employers are also encouraged to consult relevant FAQs put forth by the World Health Organization (WHO) and the Australian government.
As this is a fluid and rapidly changing situation, please keep in mind that different or additional facts may warrant re-assessment of policies and practices so they can serve the best interest of employees, employers and the community at large.
TRAVEL RESTRICTIONS
Australia’s borders are closed. Only Australian citizens, residents and immediate family members can travel to Australia at this time.
Additionally, the Australian Government has announced a travel ban for all Australian citizens as well with a few exceptions including essential travel, for reasons that are in the national interest or on the basis of compassionate grounds.
Australian citizens who are permanent residents overseas are exempt and Australian Border Force will determine if people are eligible to travel under one of the exemptions.
Additionally, effective from March 27, 2020, all individuals returning to Australia from overseas are required to enter mandatory quarantine at a designated facility in the city where the individual arrives in Australia. All persons arriving into Australia are taken directly from the airport to a hotel or other facility that has been set up by the government as a quarantine center. The 14-day quarantine period must then be completed by the individual before they will be permitted to return to their home.
1. Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?
As a result of the Government ban on all travel for Australian citizens, it is unlikely that travel is possible at this time. Regardless though, as the virus is continuing to spread globally at alarming rates, it would be wise for employers to restrict all unnecessary travel (overseas or domestic) for a period and also place restrictions on any work-related events where there will be large crowds, groups, etc.
A failure to protect employees by implementing these types of measures could place an employer at risk of a claim under Australia’s state health and safety laws.
The Australian Government travel advisory website is updated regularly and can be found here.
2. What should an employer do if an employee shares that they plan to travel to an affected area?
If an employee indicates that they are planning to travel to an effected area and the reason for travel is work-related then the employer can direct the employee to cancel their trip. If the employee refuses or travels without consent then this would be grounds for disciplinary action up to termination of employment for failure to follow a reasonable direction of the company.
If an employee plans to travel for personal reasons then the company should advise the employee that if they proceed with their travel plans they will be required to go into mandatory quarantine at a Government facility.
If an employee is required to quarantine following a period of travel overseas then the employee should be directed to work remotely if the employee’s job is possible to do remotely and they have the facilities (for example, a work-issued laptop and mobile phone) to be able to do so. However, if the employee performs a job that is not possible to perform remotely then the employer can direct the employee to remain off work and the employee can be required to take whatever leaves are available to the employee, for example, annual or personal (sick leave). If the employee has no available paid leave then they can be directed to take unpaid leave.
Alternatively, employers are permitted to ‘stand down’ employees in certain circumstances, including situations that are out of the employer’s control such as natural disasters or emergency situations that require a closure. This includes the current COV-19 situation.
During a period of stand down, an employee does not need to be paid but employees will continue to accrue paid leaves in the usual way. However, where possible employees, should be directed to take accrued and unused annual leave during a stand down period first before they are placed on any period of unpaid stand down.
3. How should an employer handle employees who have family members who have traveled to affected areas?
An employer cannot request details pertaining to a third party. If an employee notifies the company that a family member with whom they live or have been in contact has traveled to a high- or moderate-risk country, the employer can adopt the same rules as outlined above in question 2 – the company can request confirmation that the employee has undertaken a screen and is free of the virus, and can direct the employee to work from home until this confirmation has been received. However, the employer will not be able to require the employee to take paid or unpaid leave in these circumstances without the employee’s consent. Employers can send a notification to employees requesting, but not requiring, that they please advise the company if any family or household members have traveled to one of the high- or moderate-risk countries.
4. Can we prevent employees from traveling to affected areas for personal reasons?
See response to question 2.
DISCRIMINATION LAW
5. What discrimination issues should employers address/be aware of?
Australia’s discrimination laws protect employees from unlawful discrimination or harassment on the basis of illness/medical condition. The law also protects employees from discrimination on the basis of association with any person with a protected characteristic. As such, employees will be protected from discrimination if they are associated with a person who has the virus. There are also general protections provisions under the Fair Work Act that prevent an employer from taking adverse action with respect to a person’s employment based on a discriminatory ground. An employer is permitted, however, to take actions that would otherwise be discriminatory and a breach of the law if there is a legitimate reason for doing so. In situations of emergency like this, where the health and safety of other employees and customers could be put at risk if certain safety measures are not put in place, the company would be justified in taking the action. For example, directing an employee to remain at home on paid or unpaid leave if they have been in contact with a family member who has the virus may be an action that on its face appears to be discriminatory. In light of the high risk of permitting the employee to return to work before they have received a clear test result, however, it would not be an unreasonable action and therefore would not breach Australia’s discrimination laws or the general protections provisions of the Fair Work Act.
6. What are the employer’s obligations to prevent harassment of those suspected of being infected?
Employers have a legal obligation to take steps to prevent unlawful discrimination, harassment and bullying on any protected ground, including race, family status, illness or injury (medical condition), association with any person with a protected characteristic, etc. An employer’s obligations include having equal employment opportunity and anti-bullying policies, and periodically training employees on appropriate workplace behavior (approximately every 12 months to 2 years). Employers are also required to take appropriate action when any incident or complaint of discrimination, harassment or bullying occurs in the workplace or at any work-related event.
In light of the current circumstances, employers should consider sending employees a communication to remind them of the company policies regarding discrimination, harassment and bullying, with links or copies of the policies. Employers can also put employees on notice that any conduct violating company policies or the law will warrant disciplinary action up to termination.
DISABILITY LAW
7. Can employers take the temperature of employees who are coming to work?
Employers cannot not take the temperature of employees who are coming to work without (a) implementing a policy permitting this after going through a period of consultation with the employees and their representatives (i.e., their union) if any; or (b) an individual employee’s consent. However, even if the employee group or an individual employee consents, it would be unwise for an employer to do this without engaging the services of a trained medical professional.
Additionally, if any employee arrives at work with a suspected fever or illness, the company can direct the employee to leave the workplace and seek medical treatment.
8. Are there any rules on what employers are allowed to do concerning subjecting employees to medical examinations or health-related tests that would apply to an emergency situation involving a communicable illness such as COVID-19?
See the response to question 7.
Because this is a rapidly changing situation, governments are updating their legislation to address the related challenges. Accordingly, employers should consult with their legal counsel to keep updated on any labor and employment law developments.
COVID-19 FINANCIAL RELIEF FOR BUSINESSES
The Federal Government has prepared a summary of its economic stimulus package for individuals and businesses. The summary includes a useful table identifying the timing for the roll out of the assistance, and can be located here.
Notably, another stimulus package was recently announced for Australia. The JobKeeper payment will be a flat $1,500 payment each fortnight. Businesses and not-for-profit organisations that lose 30% more of their revenue over a month-long period from March 1 will be eligible for the payment, but businesses with turnover of more than $1 billion annually would need to have lost half their revenue.
All workers (including casual, full-time and part-time), will be treated the same, as long as they were employed on March 1. Casual workers need to have been employed for the past 12 months, and can only claim the payment from one employer.
The payments will be made to employers through the ATO.
The payment also applies to New Zealand citizens on 444 visas, but does not include people from other countries in Australia on working visas.
While the payments will start on May 1, they will be backdated to Monday, March 30, 2020, in the hope that employers that may have been considering laying off staff in the next week will keep them "on the books".
You can register here and the ATO will send you further information on the program.
In addition to the above economic relief packages, the following state and local government assistance relief packages have also been announced as follows:
New South Wales State Government
https://preview.nsw.gov.au/news/health-boost-and-economic-stimulus
Victorian State Government
Queensland State Government
https://www.qld.gov.au/about/industry-recovery/business-and-industry-support
Western Australian State Government
