COVID-19 is the most significant challenge for businesses in modern history, with the health and safety of everyone in your workplace being the obvious priority. Members will appreciate that it simply is not possible to provide general advice in relation to COVID-19, as it will depend upon the particular circumstances. However, some key concerns have emerged in recent weeks relating to health and safety, workplace laws, as well as contractual and statutory compliance.
First and foremost, all employers and employees must ensure, so far as reasonably practicable, the health and safety of workers. Secondly, some quarantine directions are government mandated under the Biosecurity Act and must be complied with. In short, employees in this situation should not be permitted to work where they could come into contact with others.
If an employee is ill, they are entitled to personal leave (commonly referred to as sick leave) but, if the employee is not ill and is placed in isolation simply as a precaution, then strictly speaking there is no entitlement to personal leave under section 97 of the Fair Work Act. However, because this is a ‘once in a generation’ pandemic, we suggest employers should be flexible, act with compassion and come to some agreement with employees regarding the taking of sick leave if them entering quarantine becomes an issue.
It would then be classed as unpaid leave, unless the employer and employee come to an agreement whereby the employee is allowed to enter into a negative sick leave balance or access accrued annual or long service leave (if available). Where a company decides to provide special leave, other discretionary arrangements or offer ex-gratia payments, the company should clearly communicate that this has been provided at the employer’s discretion and is exclusively based on the current situation.
It is the employer’s duty under OSH legislation to prevent a risk of infecting other employees. In certain circumstances, it is a lawful direction from the Health Department under the Biosecurity Act and must be complied with. Refer to the Australian Government Health Department website for the latest COVID-19 resources, including requirements for self-quarantine.
In accordance with your OSH obligations, prior to sending your employee to perform work in another location, you should make reasonable enquiries with the client to confirm to the best of their knowledge, whether they, or anybody at the site or building, have been in close proximity or in close personal contact with anyone suspected or confirmed to have COVID-19.
It depends, but prior to granting workplace access to an employee (or subcontractor, client or visitor for that matter) we recommend a short questionnaire with questions such as:
(a) Have you travelled outside of Australia or had close personal contact with anyone who has travelled overseas in the last 14 days?
(b) To the best of your knowledge, have you been in close proximity or in close personal contact with anyone suspected or confirmed to have COVID-19?
(c) Do you have a fever and any of these symptoms: Cough, sore throat, nausea or difficulty breathing?
Employers must comply with contractual and statutory minimums, such as the Fair Work Act, Modern Awards, Enterprise Agreements, State legislation and employment contracts. However, the Fair Work Act (and some Enterprise Agreements and employment contracts) includes an ability to stand employees down and cease making payments if there is a stoppage of work for a cause for which the employer cannot reasonably be held responsible (Section 524).
We recommend employers act with compassion and discuss options such as allowing employees to draw on annual or long service leave, working from home, switching to part-time work, split shifts or taking leave in advance by agreement, before directing them to take leave without pay.
Please note that employees cannot be stood down indefinitely and if it is clear that a position has become redundant, the employer is obliged to comply with legislative, Award and contractual obligations in relation to redundancy.
Typically a force majeure provision will relieve an affected party that is prevented or delayed from performing its contractual obligations due to an event that is not within its reasonable control, where the affected party is not reasonably able to prevent or overcome the event. To determine if COVID-19 constitutes a force majeure, it will depend on the contract terms and the circumstances.
If a party is prevented or delayed from performing contractual obligations due to COVID-19, the company should analyse their contractual obligations and whether they can:
In absence of a force majeure provision, or if the definition excludes a pandemic, a business should review other provisions of the contract, such as any termination for convenience or variation provisions. At its most extreme, a party may argue that the contract is frustrated altogether and the parties discharged from their contractual obligations.
Much will depend upon the particular circumstances but employers should make efforts to minimise the impact of COVID-19 on their businesses:
Employers should consider the Privacy legislation, their Privacy policies and avoid disclosing personal information beyond what is necessary. They should ensure health data remains anonymous and obtain consent before circulating any personal information.
Depending on the circumstances and how the COVID-19 virus was contracted, employees may be entitled to workers compensation. The legislation may vary between jurisdictions but generally the employee’s employment must have significantly contributed to the employee contracting the virus. Implementing the measures listed would reduce the risk of such claims.
Where pricing is increased unilaterally in response to the market circumstances the ACCC may be concerned about a misuse of market power and may investigate “price gouging” and misleading or deceptive conduct, which are prohibited by the ACL.
In summary, situations concerning health and safety, workplace laws, privacy, workers compensation and contractual and legislative compliance, should be evaluated on a case-by-case basis and we recommend you seek advice before you take action.
Disclaimer: This summary is a guide only and is not legal advice. For more information on legislative or contractual obligations, call NECA Legal (WA) Pty Ltd on (08) 6241 6129 or email firstname.lastname@example.org.