28 February, 2020
What you need to know
- Coronavirus poses potential risks to the business of employers and the health and wellbeing of employees.
- Current health warnings are that the risk of infection is low. Any responses must be measured and proportionate to the risks identified. Regard should be had to the most recent and up to date medical advice available.
What you need to do
- Consider measures to deal with the immediate risk of the spread of coronavirus to protect employees and your business, including leave arrangements for employees diagnosed with the virus or subject to an isolation direction by a government agency or medical practitioner.
- Undertake contingency planning to protect your business.
- An employer should consider its own work arrangements and employment related obligations, and make an assessment of the risks (if any) in relation to its own business and circumstances, in deciding upon ways to manage matters on the ground that are best suited to its business.
Coronavirus cases have been diagnosed in Australia and pose potential risks to public health, businesses and workers. Current health warnings from Australian government departments are that the risk of infection is low. However, the World Health Organisation has now declared the outbreak as a public health emergency of international concern. Australian governments and responsible agencies have taken immediate protective measures.
The immediate response by employers should be measured and proportionate to the risks identified. Prudent employers will be planning now to manage the impact on their operations and workers. The pandemics of SARS, swine and avian influenza in the 2000s demonstrate that impact on business can be significant and the spread and impact of a virus can change rapidly.
Duties employers have where there is an outbreak of illness
Employers will need to balance their legal obligation to take precautions to protect the health and wellbeing of workers where there is a real risk of contraction of coronavirus, together with meeting their obligations under anti-discrimination legislation. Employers have an obligation to ensure the health and safety of workers which will include exposure to the contraction of coronavirus from infected co-workers. Employers must also ensure that employees with a disability (which includes a disease, such as coronavirus), or of a particular national extraction, are not discriminated against or vilified.
Employees diagnosed with coronavirus will be able to access paid sick leave. Employees can also access carer's leave to care for family members diagnosed with the virus. Depending on the length of leave required, if paid personal/carer's leave was exhausted, employers could also consider providing access to other types of paid leave for affected employees.
Any decision about fitness for work of workers should be made on accurate and up-to-date medical information. An employer may require a medical clearance before permitting employees to return to work, where there is a concern of contraction of the virus due to symptoms or recent travel or exposure.
Employers should also ensure that employees affected by coronavirus, or suspected of having it, are treated respectfully and not subjected to unlawful discrimination or victimisation in the workplace. It will be reasonable to take appropriate measures to protect workers, and their co-workers, by directing employees with symptoms or based on their recent travel to remain off work. This should be based on accurate information. Employers should guard against employees, such as Chinese migrants, being harassed or vilified in the workplace. These situations will need to be dealt with sensitively.
Measures to protect employees – due to infection or travel
Employers should consider the medical advice available and, where appropriate, take appropriate measures to address the risk of coronavirus being contracted or spread within the workplace. This will ensure they meet their obligations to care for the welfare and wellbeing of employees, and also to minimise the impact on their business.
Travel for work related purposes to mainland China should be carefully considered. Current guidance by the Australian Government is to reconsider the need to travel to mainland China, and not to travel to Hubei Province where the outbreak originated in Wuhan. Travel advice issued by the Australian Department of Foreign Affairs and Trade (smarttraveller.gov.au) should be monitored for locations affected by coronavirus.
Employees returning from leave or travel, who have visited mainland China in the past 14 days, may be requested to work from home where that is possible. A more stringent position may be taken with employees who have returned from Wuhan or the Hubei province in mainland China, or who have been in contact with a person diagnosed with coronavirus. Employers could require employees to advise them if this is the case, and may direct them not to attend for work until they receive a medical clearance.
Employers should advise employees to seek medical attention immediately if they develop respiratory of other coronavirus symptoms, and to access government public health information about obtaining a diagnosis. An employee who starts exhibiting symptoms at the workplace should be given immediate medical attention, and precautionary steps may need to be taken with co-workers and the specific work location to ensure worker health and safety and manage the risk of potential exposure to the virus.
Employers should also develop a communications strategy to provide employees with accurate and timely information about developments, pro-active steps the employer is taking, and access to the latest public health and travel information – so that employees may take their own steps to ensure their health and welfare.
There may be other matters, including in relation to day-to-day operations, that need to be managed by employers. Employers will need to consider their own specific work arrangements, including applicable industrial instruments, policies and employment agreements, and assess for themselves whether there are real risks (if any) that may arise having regard to their own business and circumstances, and then decide upon ways to manage them in a way most appropriate and best suited to it.
Leave entitlements and alternative work arrangements where an employer requests workers to stay at home
An employee who is diagnosed with coronavirus, and possibly subject to a quarantine direction from a medical practitioner or government agency, would not be fit or able to attend for work and could be placed on paid personal leave. The Australian Government has also advised that travellers returning to Australia could be quarantined due to their health condition or previous location – and employees could also be placed on paid personal leave in that event.
If an employer is being cautious about potential risks, and requests employees returning from mainland China (or other potentially coronavirus affected locations, if there is a future substantial spread of the virus) not to attend for work for a period, it will need to consider alternative work arrangements or leave.
Employers should check employment contracts, industrial instruments and policies to determine whether there is an ability to direct employees to work from home, not attend for work or place employees on leave in such circumstances.
If work can be performed from home, the employer could require the employee to perform work remotely for a period or until cleared by a medical practitioner.
If there are no specific terms dealing with the situation, employers will need to provide paid leave to the employee, most likely in the form of special leave.
Measures to take if the situation worsens
While the number of diagnosed coronavirus cases in Australian are few, and the present risk, as advised by government agencies, of contraction of the virus is low, the risk of coronavirus becoming pandemic is foreseeable. Prudent employers could undertake contingency planning now to protect their business. That could encompass measures for its workforce and broader operational matters. Employers may have in place contingency plans from previous virus outbreaks of SARS, swine and avian influenza and those plans could be reviewed and updated.
Planning could include the following:
- Considering flexible working arrangements for employees, to permit working from home to prevent spread of the virus in the workplace or in the community. Ensure that working from home policies are up to date.
- Updating travel rules and arrangements for travel to coronavirus affected areas, and limiting non-essential business travel.
- Updating policies on fitness for work, leave and possible "quarantining" of employees. This could include formalising processes for requiring employees to remain off work if they have been affected by the virus, or have travelled to virus affected areas.
- Reviewing arrangements for workplace hygiene and cleaning protocols. This should include communicating good hygiene protocols with employees including "cough and sneeze etiquette".
- Ensuring the mental health and wellbeing of employees who may be concerned about coronavirus. This could include sharing the most recent and up to date medical advice available and otherwise promoting access to employee assistance programs. Making clear communications to employees will provide reassurance that any risk to their welfare and the business is being managed and the employer stands ready to respond.
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