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I am going to try and keep our communication with you as consistent and frequent as possible, I am fielding many calls and emails from you on what this means for your business and how to best manage staff with during the coronavirus pandemic.
There is a lot of information on offer and I’ve found this FAQ communication on managing staff members during this time.
If an employee has to self-isolate, what types of leave are they able to use?
If an employee voluntarily elects to self-isolate or is directed by a Government order to self-isolate, then the employee can take unpaid leave or request to use their annual leave or long service leave entitlements (if applicable). Long service leave entitlements need to be taken in conjunction with the applicable long service leave legislation which restricts how many separate periods it can be used.
If the employee actually falls ill, then this will be sick leave.
If the employer issues a directive for a full time or part time employee to self- isolate and not come to work when the employee is otherwise willing and able to work, then the employer needs to pay the employee their full rate of pay. This means what the employee would have otherwise earned had they been at work which includes:
– Incentive-based payments (e.g. commissions and bonuses;
– Monetary allowances;
– Overtime or penalty rates; and
– Any other separately identifieable amounts.
If a Business has to close due to an employee being infected with coronavirus, do we have to pay our employees?
Under Section 524 of the Fair Work Act 2009 (the Act), an employer is entitled to stand down their employees on unpaid leave if there is a stoppage of work for any cause for which the employer cannot be held responsible for. This would apply in such circumstances if the employee was a confirmed case of coronavirus.
However, employees can request to use their annual leave or long service leave entitlements (if applicable) during this time.
What are the protocols to follow if an employee tests positive for coronavirus?
If an employee tests positive for coronavirus then they are to be on sick leave until they receive a doctors’ clearance to return to work.
Any employees that have had direct contact with a confirmed case of coronavirus are also required to seek medical attention immediately from a doctor or hospital and request to be tested for Coronavirus. There is a shortage of test kits so doctors will only test those who meet the criteria stipulated by the Department of Health.
If NSW Health confirm that the person has the Coronavirus, the local Public Health Unit will be in contact with close contacts from the workplace, if any, to advise them on what action to take. Employers may also contact the Coronavirus Health Information Line on 1800 020 080 for further information.
If the person was infectious while at work the employer must notify SafeWork NSW by calling 13 10 50.
If an employee contracts the coronavirus do I have to shut my business?
If an employee contracts the Coronavirus, you do not necessarily need to shut your business. This will depend on what is ‘reasonably practicable’ for you as the person conducting business or undertaking (PCBU), i.e. the employer, in accordance with the Work Health and Safety Act 2011 (the WHS Act).
Section 18 of the WHS Act defines ‘reasonably practicable’ as the following:
“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring, and
(b) the degree of harm that might result from the hazard or the risk, and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk, and
(ii) ways of eliminating or minimising the risk, and
(d) the availability and suitability of ways to eliminate or minimise the risk, and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
You will need to assess the likelihood and the risk to other employees of contracting the Coronavirus and whether this is grossly disproportionate to the cost to the business. If the likelihood and the risk are high, then shutting the business for the 14 day quarantine period would be the recommended control measure. Circumstances where this may apply include if other employees have been in ‘close contact’ with a confirmed case. A ‘close contact’ is someone who has been face to face for at least 15 minutes, or been in the same closed space for at least 2 hours, as someone who has tested positive for the Coronavirus when that person was infectious.
Whereas if the likelihood and the risk are low, e.g. employees do not have ‘close contact’ with other employees, then other measures may be more suitable such as:
– Shutting the business for a short period to have the workplace disinfected (this would fall within the provisions of Section 524 of the Act of being able to stand employees down on unpaid leave);
– Allowing employees to work from home if possible;
– Providing employees access to face masks, anti-bacterial wipes, surface disinfectants, hand sanitiser and hand wash;
– Ensuring employees are training in effective infection control and hand hygiene. Posters and guidelines can be printed from the NSW Health website here.
– Practising social distancing
Employers should keep in mind that failing to exercise your duty of care under the WHS Act so far as reasonably practicable can result in hefty fines and even criminal charges in severe cases.
What do I do if there is a tenuous link between an employee and a person affected by the coronavirus such as a friend, family member or child of the employee?
NSW Health have advised that only those who have been a ‘close contact’ of a confirmed coronavirus case are required to self-isolate for 14 days.
What does self-isolate mean and what must an employee do?
An employee required to self-isolate should stay home until cleared by the doctor. If sharing a home with others, where possible, they should:
– Remain in a separate room from others;
– Use a separate bathroom from others (if possible);
– Wear a surgical mask when around others and practice infection control and hand hygiene;
– Avoid sharing household items e.g. cups, dishes utensils, bedding, towels, etc. These items should be thoroughly washed after use.
The public health authorities will also contact individuals affected by the Coronavirus and any ‘close contacts’ to provide advice on what they are required to do. More information regarding self-isolating can be accessed here.
If I my business is facing a downturn as a result of the impacts of the coronavirus, can I reduce employees hours or let them go?
If your business is facing a downturn as a result of the economic effects of the Coronavirus then you will first need to comply with the consultation requirements in an Award. This involves meeting with your employees to discuss the issues the business is facing and what measures you can implement to try maintain everyone’s’ employment whilst remaining financially viable. Some suggestions may include:
– Transitioning full time employees to part time or casual employment;
– Having employees take a period of paid or unpaid leave to see if business activity increases;
– Making positions redundant; or
– Any other suggestions that your employees may have.
With regards to the abovementioned first two options, the employee/s will need to be agreeable to these changes or period of leave before these can be implemented by the employer. If an employee/s is not agreeable, then these cannot be enforced and other options will need to be explored such as redundancy.
Standing down an employee because there is not enough work does not satisfy Section 524 of the Act and the employer will therefore be required to pay the employee their full rate of pay.
If an employee has been in contact with a person identified as a ‘close contact’ of another person with confirmed Coronavirus, the employee does not need to self-isolate (although the close contact does) and does not need take any other special precautions. However, if the close contact of the employee develops symptoms and is confirmed as a Coronavirus case, public health authorities will determine who, if anyone, has been in close contact with them while they were infectious, and these people will be directed to self-isolate.
More information on this can be found via the NSW Health website by clicking here.
If the school closes and my employee has to look after their child/children am I required to pay them their normal pay whilst at home?
Section 97 of the Act states that an employee is entitled to take carer’s leave:
“to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
– member; or a personal illness, or personal injury, affecting the an unexpected emergency affecting the member.”
The Fair Work Ombudsman has taken the approach that a school closing on short notice and for a short period due to concerns about coronavirus (e.g. because someone at the school has tested positive) is an unexpected emergency for this purpose. There is no definition within the Act for an ‘unexpected emergency’ so each individual employee’s circumstances will need to be reasonably assessed.
Individual circumstances may include:
· How much notice was provided by the school? Would it have been reasonable for the employee to make other arrangements during the notice period?
· Where do the employee and their child live? Do they easily have access to child minding facilities or other options to have their child looked after?
· How old is the child? Does the child have a health condition or a disability? Do they actually require the care or support of the employee?
An employee must give their employer reasonable evidence of the unexpected emergency if their employer asks for it
We remain extremely grateful for your business, and are committed to working with you through this unsettled time. If you’re unsure or have any questions at all, shoot us an email and we can give you a call to discuss how we can help.
+61 2 9181 3431