FCW Lawyers

Coronavirus: Making sense of leave entitlements, policy development and communications

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Written by Nina Hoang

As the coronavirus pandemic continues to intensify, workplaces and institutions across all industry sectors are responding with greater urgency to keep their people and business safe. With growing cases of COVID-19 reported daily, the risk of an employee being affected directly or indirectly is real.

As businesses try to do the right thing to manage their teams through this challenging period, it is important to understand and manage leave entitlements appropriately where an employee may be affected.

The following scenarios outline situations you may need to manage in coming weeks, including general recommendations on policy development and communications management.

Scenario 1: Your employee has coronavirus

Similarly in cases where an permanent employee has a cold or the flu, they are entitled under section 97 of the Fair Work Act 2009 (Cth) to take paid personal leave if they are not fit for work due to illness or injury. Employers are obliged to pay the employee at their base rate for all of their ordinary hours of work during the time that they are away due to the sickness. Employers may request that an employee provide medical evidence of their illness or injury before payment is made. Permanent employees can use all of their accrued personal leave entitlements. If they run out of their leave entitlements before they are certified as fit to return to work, they will be required to remain on unpaid personal leave.

Under section 95 of the Fair Work Act 2009 (Cth), casual employees do not have any entitlement to paid personal leave and must take unpaid personal leave during this time.

Scenario 2: An employee’s family member has coronavirus

If a permanent employee’s immediate family or a member of their household has been diagnosed with coronavirus and the employee is required to take care of them, they are entitled to use any accrued paid carer’s leave under section 97 of the Fair Work Act 2009 (Cth). Permanent and casual employees are also entitled to use up to two days of unpaid carer’s leave for each occasion under section 102 of the Fair Work Act 2009 (Cth).

Unfortunately, given the Australian Government’s requirements for self-isolation if there has been exposure to an infected individual, it is likely that your employee will need to be self-quarantined for a 14 day period. During this period, if it is possible, you should direct the employee to work from home.

However if this is not possible, if the permanent employee does not present with a confirmed case of coronavirus, you cannot direct them to use their personal leave entitlements. Additionally, it is unlawful to force a permanent employee to use their annual leave entitlements. Instead, the employer would simply have to pay the permanent employee for their ordinary hours during this time, without it affecting the employee’s accrued entitlements. Casual employees do have the expectation of continuing work, so you are not obliged to roster them on for a 14 day period to ensure the self-quarantine.

Scenario 3: An employee goes on holiday and gets sick

The employee would be able to access their accrued personal leave entitlements under section 97 of the Fair Work Act 2009 (Cth), this would be the case no matter what sickness the employee had. The same notice and evidence requirements apply as any request for personal leave.

Scenario 4: An employee goes on holiday and is not sick. Do they still have to self isolate?

The current advice from the Australian Government is that individuals are only required to self-isolate if they have recently returned from China, Iran, Japan, Italy or South Korea. If you have employees who have recently travelled to these countries, you should direct them to get a medical clearance from a doctor. If the permanent employee is not cleared (or if they have been placed in quarantine when entering Australia) they should be put on paid sick leave.

If the employee is cleared, to be safe (because of the incubation period before the virus might be detected) you can either:

  • Request that they work from home if this is a possibility for a self quarantine of 14 days; or
  • Ask permanent employees to take paid time off (this would not come from their accruals as there would be a risk of a discrimination claim since there is no actual basis that they are unwell) for a self-quarantine of 14 days); or
  • Do not roster casual employees on for a 14 day period.

At the end of the 14 days, employees should be directed to get a medical clearance authorising that they may return to work.

As an employer you have obligations under the Occupational Health and Safety Act 2004 (VIC) to provide and maintain a safe workplace for all your employees, so it essential that you require any infected employees to get a medical clearance before they are allowed to return to work otherwise there is a risk of the infection spreading.

Recommended processes for businesses

  1. Develop and implement a company policy
  • You should prepare and clearly communicate a policy on your company’s approach to the management of the coronavirus (COVID-19)
  • The content of your company policy may vary depending upon the nature of your business and the degree and nature of employee contact in the course of their work with other persons who are not employees
  • Compliance with the company’s policy on the coronavirus is considered a serious matter and a failure to comply with the policy may give rise to disciplinary action, due to breaches of lawful and reasonable directions.
  • If there is any confusion about the application of the policy to an employee’s circumstances they should report the issue to, and seek advice from, the Human Resources team.
  1. Issues to consider in the development of your policy
  • The policy should detail the symptoms currently recognised as giving rise to a concern that a person may have the virus, and its means of transmission
  • The symptoms need to be considered in conjunction with other important risk considerations, i.e. see the issue addressed in the next point
  • You should direct any employee who has recently travelled to China, Italy, South Korea, Japan and Iran (or has been around someone who returned from any of these countries) to get a medical clearance from the doctor
  • If any employee meets the criteria detailed above, they must notify HR
  • Any employees showing any signs of symptoms of coronavirus should also be directed to get medical clearance from a doctor even if they have not travelled recently
  • Any employees who refuse to comply should be reminded that they have duties under section 25 of the Occupational Health and Safety Act 2004 (VIC), which includes taking reasonable care for the health and safety of persons who could be affected by the employee’s actions in the workplace. As part of these duties they are required to comply with these directions and report any concerning symptoms immediately.
  1. Communication strategy
  • You should also have a communications strategy in place on how to provide all employees with timely information about any developments and what steps you are taking to address any new situations, particularly if an employee is required to self-isolate.

If you require advice on managing your business and people in response to COVID-19, email our Managing Principal, Andrew Douglas or our Head of Safety and Principal Lawyer, Graham Dent.

Disclaimer: This email is intended for guidance purposes only on the considerations to which a business should have regard in managing coronavirus (CV) issues with their employees. Information on CV is being revised by governments and regulators in Australia and overseas on a regular basis and therefore guidance for business may change. This guidance is not a substitute for legal advice which is tailored to the specific circumstances of your business.