Australia: Managing Your Workforce in the Age of the Coronavirus

WORK HEALTH AND SAFETY

Our work health and safety (WHS) laws do not contain any prescriptive requirements as to how employers should deal with a viral outbreak. These laws contain a primary obligation on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of their workers whilst they are at work. This obligation extends also to persons who may be affected by their work, such as visitors to the employer’s workplace.

For the purposes of these WHS laws, the concept of a workplace is broad and extends to any place where an employee performs work. This would include the location of off-site meetings and conferences which an employee is required to attend, and the means of travel to that location. Although an employer may not have much control over these locations, it does have the ability to cancel these attendances or impose conditions on these attendances.

Most employers will have to conduct risk assessments and adopt risk control measures across various work environments. In each instance an employer must ask itself what is reasonably practicable to eliminate or reduce a Coronavirus related risk. This will involve consideration of the following factors:

• the extent to which a control measure is likely to eliminate or reduce or the risk of workers (or visitors) contracting or spreading the Coronavirus
• whether or not it is reasonably practicable to take that measure, for example in terms of cost, disruption to the business etc.
• the likelihood of the risk occurring
• the degree of harm which may result if the risk is not managed and the virus is contracted or spread

Unfortunately, what we know about the Coronavirus and the risk of contraction is rapidly changing, and it is difficult to give definitive and current advice as to appropriate control measures. These control measures will vary from business to business. It is important that employers keep themselves updated. We do set out some suggested control measures later in this alert.

Officers of corporate employers also owe an independent obligation to exercise due diligence to ensure that their company complies with WHS laws. This would necessarily include updating themselves as to the Coronavirus risk and ensuring that their company has implemented measures and devoted sufficient resources to manage this risk. It is important that officers take an active interest in this area and promote safe practices and compliance with WHS policies.

On the flipside, workers themselves have a duty under WHS laws to take reasonable care for their own health and safety and to not adversely affect the health and safety of others. They must also comply with reasonable measures imposed by their employer which are aimed at ensuring work health and safety. For example, this means that an employee who attends the workplace knowing (and not disclosing) that they have or are likely to have contracted the Coronavirus may be breaching WHS laws and can be subject to disciplinary action.

Finally, employers in each State must consider mandatory reporting obligations under WHS laws. For example, a confirmed case of Coronavirus, where the transmission was work-related, is likely to be considered a notifiable incident under WHS laws in each state or territory.

WORKER PROTECTIONS

Employers should rely on Government instructions and medical advice in determining what measures they should take to protect their workforce, especially where these measures may have an adverse impact on certain employees.

Employees still have protections under disability discrimination and adverse action laws where they are treated less favourably in their employment due to illness (or suspected illness). A key exemption will apply where the particular illness means the employee is incapable of performing the inherent requirements of work, even after reasonable adjustments are taken into account (such as working from home). An employee also has protections from discrimination where he or she is required to remain home to take care of an unwell family member.

An employee who is on a temporary absence from work due to illness or injury is also protected from dismissal under the Fair Work Act 2009 provided that a number of reporting conditions are met. A temporary absence is a period of or disparate periods totalling three months in any twelve month period (longer if the employee has been on paid sick leave throughout the period of absence).

If an employee can establish that he or she has contracted the Coronavirus (or any other illness) whilst at work, that employee may also have rights to workers compensation payments and stronger protections from dismissal on unfitness grounds. The period of protection is different from jurisdiction to jurisdiction. In New South Wales, the protection persists for a period of 6 months from the date that the employee becomes unfit for work. Of course, there are practical issues in determining whether or not the illness is work-related.

DIRECTING EMPLOYEES TO WORK FROM HOME

An employer may have the right to direct fit employees to work from home as a precautionary measure, to avoid the contraction or spread of the Coronavirus. The existence of this right will depend on the employment contract, any applicable industrial instrument, the nature of the work, and whether working from home is practical. For example, an employee may not have access to a private workstation or facilities which would enable them to perform their work. Employers are responsible for any direct costs associated with working from home, and also the safety and security of staff who are working from home. Workers compensation and WHS laws continue to apply whilst an employee is working from home. They may also have to adjust their expectations in terms of productivity and performance assessments where it is inevitable that remote working will result in a reduced workflow or support.

STAND AND SHUT DOWNS

Not all employees will be able to work from home. As a precautionary measure, employers may consider requiring certain employees (who may be otherwise fit for work) to take leave and stay away from the workplace. Whether or not an employee is entitled to pay in these circumstances is a vexed question.

Where an employee is fit, ready and able to perform work and is not a casual employee, then the employer must continue to pay them. Sick leave is reserved only for those employees who are actually unfit for work due to illness or disability. An employer can ask its employees to take accrued annual leave, but can only direct them to do so in limited circumstances – which vary depending on whether or not they are covered by an industrial instrument and the terms of their employment contract.

However, if an employee is required independently to self-quarantine by law (e.g., because they have arrived from an overseas destination or received a notice from a health authority under public health emergency legislation) and cannot otherwise work whilst on quarantine, an employer is not obliged to pay them. A potential exception to this is where the employer in some way caused the imposition of the self-quarantining (e.g., where the employer required the employee to travel overseas). The employer and employee may agree that accrued annual leave be taken over this period.

Genuine casual employees are engaged on a day-to-day basis, and would not be entitled to pay where an employer elects not to offer up further work as a precautionary measure. However, at this stage, many employers are opting to continue to pay them.

Under the Fair Work Act 2009 (Cth), an employer does have the right to stand down employees without pay in limited circumstances which include where there is a stoppage of work for which the employer cannot be held responsible. These provisions are relatively untested, but could apply in certain circumstances where the Government decides that certain employers should shut down their businesses for a period of time. They are unlikely to apply where the employer makes a decision to stand employees down as a precautionary measure. Employers should consult with employees and any trade union of which their employees are members before implementing such drastic measures.

PRIVACY ISSUES

If proposing to collect, use or disclose personal information about employees in connection with the Coronavirus, employers will need to ensure that they comply with privacy laws.

The Privacy Act 1988 (Cth) (Privacy Act) regulates the collection, use, storage and disclosure of “Personal Information” for the private sector and Australian Commonwealth government bodies by requiring compliance with the Australian Privacy Principles (APPs). State and Territory government bodies have their own similar privacy laws. Personal information includes “health information” such as the fact that an employee has contracted Coronavirus or is suspected to have contracted Coronavirus. Personal information will also extend to information regarding an employee’s business or private travel, and contact with other people who have been infected by Coronavirus.

Where possible, employers should notify employees of any additional collection, use and disclosure of personal information in response to the Coronavirus and, where appropriate, seek their informed consent and explain the reasons for their actions and the purposes for which the information will be used. Employers should take care not to misrepresent these reasons (eg by indicating that it is a Government requirement, if at the time, it is not). Employers should also take measures to ensure that the confidentiality of the collected information is respected and that it is used and disclosed consistently with what employees have been told. Additionally, it may be a timely opportunity for employers to warn their employees that they should not spread misinformation about fellow staff which may be hurtful and result in claims of unlawful discrimination or defamation.

Where it is impracticable or not possible for an employer to obtain consent, there are a number of exemptions which may apply. However, these exemptions are narrow, and in some cases relatively untested. Employers should seek further advice before relying on them, especially because health information is regarded as particularly sensitive.

First, the Privacy Act does allow an organisation to collect, use and disclose health information about an individual without an individual’s consent where:

• it is unreasonable or impracticable to obtain the individual’s consent to the collection, use or disclosure
• the entity reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety

The extent of this exclusion has not been significantly tested so care should be taken if seeking to rely on it (e.g., the exception may have quite narrow application to where a person is incapacitated or uncontactable).

Second, the APPs permit collection and disclosure where required or authorised under an Australian law. This may include circumstances where an employer is collecting, using, or disclosing personal information to comply with a mandatory government directive or the work health and safety obligations which we have set out earlier in this alert.

Finally, the Privacy Act does not regulate employee records, which includes health information about an employee, where those records are collected, used or disclosed in relation to a current or former employment relationship between the employer and the individual. If an employer (and not any related entity) collects and uses the health information of an employee in relation to making decisions relating to that particular employee’s employment (eg a decision to require that employee to work from home), then this activity is likely to fall within the employee records exemption. However, where the use or disclosure extends to decisions regarding other staff (eg who may have had contact with the first employee), its operation is not so clear and the employer may need to resort to the abovementioned exemptions.

What should Australian employers do?

The below is a non-exhaustive outline of some general and specific measures which Australian employers should consider implementing to comply with their legal obligations and protect the safety of their workforce.

You should:

• KEEP UPDATED with the latest information through Commonwealth Government and SafeWork websites. This should include official guidelines on travel to other countries.
• TRACK where your workforce is, and understand the risks and their obligations in each jurisdiction. The laws in each country do vary dramatically. Here is a link to an updated Asia Pacific regional summary of these risks and obligations. Employees should ensure that workers who travel are readily contactable in the event of emergency and are kept updated as to developments.
• BAN NON-ESSENTIAL TRAVEL to high risk destinations and implement control measures to manage potential risks for staff who are required to travel. Anyone arriving in Australia from overseas is now required to self-quarantine for 14 days. You should note that any insurers have now excluded Coronavirus risks from their travel policy.
• DEVELOP A PLAN to manage the contagion risk, including an emergency plan if a shutdown is required. You should ensure that key managers are aware of the plan.
• APPOINT A COORDINATOR or coordination team to manage the implementation of your plan.
• COMMUNICATE REGULARLY with your workers and provide them with accurate and timely information about outbreak developments and what you are doing to manage the risk.
• COLLABORATE, where reasonably practicable, with medical professionals and WHS experts about identifying Coronavirus risks and appropriate safety measures.
• IMPLEMENT effective safety and hygiene measures including the provision of hand-sanitising facilities, and requiring employees not to turn up to work if they are unwell or potentially contagious.
• EDUCATE your managers and staff on relevant hygiene, travel, and flexible working policies.
• REQUIRE DISCLOSURE if employees have travelled overseas or to an unsafe location (whether for private or business reasons) or have had contact with a person who has or is likely to have the Coronavirus.
• QUARANTINE employees who may fall within a high risk category, for example:
  • if they have recently travelled overseas or to a high risk location whether for business or private reasons, noting that at the time that this article was published self-quarantining is required a matter of law for anyone arriving from overseas
  • if they have had recent contact with a person who has or is likely to have the Coronavirus
  • if they present with flu-like symptoms

The quarantine period should be at least 14 days and the employee should obtain medical clearance for a return to work. Where this is possible, the employer should facilitate working from home for these employees. (See above for information regarding paying employees).

• SCREEN visitors to the workplace, including for example, by requesting in advance that visitors disclose to you if they fall within a high risk category (see above). Employers should also consider issuing communications to potential visitors in advance about control measures for their workplaces, and setting these out at any reception area. It is important that employers conduct a work health and safety risk assessment of control measures available in relation to visitors.
• REDUCE or avoid face-to-face conferences and encourage video or phone conferences.
• RECONFIGURE the way you work, to reduce infection risks. This may include a moratorium on hot-desking and open plan and segregating workforces. Medical experts have suggested that practical day to day workplace interventions could decrease the number and severity of cases of Coronavirus, ranging from no handshaking policies; eating lunch at desks rather than the lunch room and conducting meetings outdoors.¹
• SUPPORT staff who are working from home by providing not only appropriate facilities, but also a steady workflow.
• CONSIDER more stringent measures where your employees are working with particularly vulnerable people e.g. in industries such as aged care, healthcare and work which involves access to detention facilities.
• PROVIDE EAP ACCESS to employees who are feeling anxious about Coronavirus risks.
• POLICE AND ENFORCE your WHS policies. For example, managers should instruct employees who are presenting with illness, not to remain at the workplace, and ensure that sick leave protocols are strictly complied with.

How can we help?

Given the current infection rates of Coronavirus, we anticipate that many employers will need to consider the implications of Coronavirus for their business and workforce, and adopt appropriately tailored WHS measures and contingency plans.

Our Employment team is able to advise employers of their legal obligations and assist in ensuring any WHS measures and contingency plans an employer is considering implementing are compliant with an employer’s relevant legal obligations.

For any assistance, or to discuss the employment law implications of the Coronavirus, please contact our team.

¹ Dalton, Craig and Corbett, Stephen and Katelaris, Anthea, Pre-Emptive Low Cost Social Distancing and Enhanced Hygiene Implemented before Local COVID-19 Transmission Could Decrease the Number and Severity of Cases. (March 5, 2020). Available at SSRN: https://ssrn.com/abstract=3549276 or http://dx.doi.org/10.2139/ssrn.3549276