Frequently Asked Questions
Question 1.
I have an employee returning from overseas, is my employee required to self-isolate for a 14-day period before returning to work?
Answer 1.
Yes.
If the employee is returning from a country in which the Australian Government Department of Home Affairs has placed a travel restriction on, including a requirement to self-isolate at home for 14 days since their left a listed country – then yes, these employees have been provided the direction by the government to self-isolate. As at 16 March 2020, these restrictions apply to all international travellers entering Australia.
As this direction is outside of the business’ control, there is no requirement for the employees to be paid by their employer throughout this period.
However, employees can access annual leave, if applicable, or if the employee is ill or injured (e.g. testing positive to COVID-19), or is required to provide care for a family or household member who is ill, injured or experiencing an unexpected emergency (e.g. isolation requirements resulting from COVID 19), they could access personal/carer’s leave if available.
Of course, employers can always opt to be more generous during these periods. Employers could consider paying employees their usual wages during this period, or relaxing criteria required for employees to access personal carer’s leave. It is likely employees are experiencing high levels of stress throughout the isolation period and employers should look at a best practice approach to people management during this time.
Question 2.
My employee has NOT been overseas, but they have travelled interstate. Can I still require them to self-isolate for a 14-day period before returning to work?
Answer 2.
Businesses can implement their own precautions to limit the spread of the virus via their own risk management plan. However, as the requirement to self-isolate for persons travelling interstate has not been restricted by the Department of Home Affairs and is not a requirement of the government, the request is considered as a direction by the employer, and the employee would be entitled to full pay during the stand down period.
Employees should NOT be required to access paid leave through this period if they are fit and willing to work.
If possible, employers can facilitate a work from home arrangement for employees during this period.
If employers are concerned about employees that are not required to self-isolate by the government, an option available to them is to stand employees down on pay for a shorter period than 14 days, and request clearance from a medical practitioner before having the employee return to work. It should be noted that not all persons may be eligible for a test of the COVID-19 due to criteria determined by the health department needing to be fulfilled to be eligible for testing.
Question 3.
Is there any circumstance in which I can stand employees down WITHOUT pay if I am worried about the virus?
Answer 3.
The Fair Work Act (and some modern awards and enterprise agreements) outline provisions in which employers can stand down employees without pay. These include:
Stand down under terms of Fair Work Act:
Fair Work Act s.524–525
An employer may stand down an employee during a period in which the employee cannot usefully be employed because of a number of circumstances including:
o industrial action (other than industrial action organised or engaged in by the employer)
o a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown, or
o a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
If the pandemic becomes more advanced, and there is intervention from a relevant agency or government body which requires a workplace to shut – outside of the employer’s control – the stand down provisions may apply. This may have to be determined on a case by case basis.
However, if you are requiring an employee to self-isolate and they do not meet the requirements to do so as directed by the federal government and relevant health authority, any requirement for employees to be absent should be paid by the employer.
Question 4.
I have multiple employees who have put in annual leave requests to travel internationally over the coming weeks and months. The requests have been approved. How should I manage employees who wish to revoke their requests, and employees who still wish to travel during this period?
Answer 4.
Businesses should do all they can to facilitate an employee revoking their annual leave request. It could be quite unreasonable for employers to still require the employee to utilise their approved period of leave if it is known they were using this leave to travel internationally and it is in the employer and the employee’s best interest to delay the trip. Speak to your employees now about their intentions. Consider this from both a workflow perspective, and a WHS perspective. Employees retuning from overseas are required by the government to self-isolate for 14 days upon return. That is an additional 2 weeks this person would be absent from the workplace. If the employee contracts the virus, this could lead to further time off and ongoing personal leave payments. It is in everyone’s best interest for employees to stay in the country during this time.
If a workplace has implemented reasonable adjustments due to an approved period of leave (e.g. an employer has engaged new staff members to cover any operational shortfalls in this persons absence), the employer may want to discuss with the employee who was seeking leave alternative arrangements such as taking part of the leave at this time. However, this should be taken on a case by case basis.
Question 5.
If an employee is adamant that they wish to continue with their international travel plans during this time, do I have to allow them the self-isolation period off as well and does the employee need to factor this into their leave request?
Answer 5.
This current situation in Australia is unprecedented and employers should act with caution. Employees may still wish to continue with travel plans because they are travelling for an important event or because they are likely to lose a large amount of money by cancelling – and employers cannot intervene with these decisions. However, employers should speak to the employee about how the 14-day isolation period required by the government fits into this. Employees may wish to apply for additional leave during this period, or they may opt for leave without pay during additional 14-days the government requires them to take off.
If the business cannot reasonably cope with this employee being absent for another 14-day period, the employer should express this to the employee with reasonable business grounds as evidence. The employer cannot prevent employees from participating in the required isolation period and cannot take any undue action on an employee complying with government orders. The employer also cannot force the employee to use annual leave for this period without the employees’ consent. Employers should speak to their ER provider about their specific situation.
Question 6.
What happens if schools close and my employees are required to be absent from work to care for their children or family members?
Answer 6.
The Fair Work Act provides for Personal / Carer’s leave. Carer’s leave encompasses caring for a family or household member in the event of an illness, injury or an unexpected emergency. As this is unprecedented, school closures could be an example of an ‘unexpected emergency’. Employers should work with employees where possible to support carer’s leave requests during this time. Evidence requirements can include school communications outlining the closure. Normal school holiday periods would not be included as an unexpected emergency, and any paid absence during this time would need to be due to illness or injury to fall under this entitlement.
Question 7.
Scott Morrison and the federal government has mentioned payment for casual employees. What is my role in this?
Answer 7.
Employers have no role in the government’s announcement for payment for casuals who are required to self-isolate under the government’s directions. Casual employees can contact the Department of Human Services to discuss any entitlements they be eligible to them at this time. Employers may assist employees in providing any evidences required for the employee to apply.
Casual employees are extremely vulnerable during this time. Following any periods of government required isolation, employers should continue rostering casuals as normal. Employers should continue to consult with casual employees about any changes to their hours during this time. Employers should do all they can to support casual employees to reduce the likelihood of infected employees returning to the workplace because they had no other choice.
Question 8.
Some employees are making insensitive jokes towards Chinese or Chinese-Australian employees (or employees from other countries with high incidences of COVID-19), or employees retuning from overseas. What should I do if I witness behaviour?
Answer 8.
Discriminatory and hurtful behaviour should not be tolerated in the workplace at any time. Employers should consult their disciplinary policy and procedure and take suitable actions against employees willingly engaging in incentive behaviour.
Question 9.
I usually require a medical certificate for ALL absences for personal/carer’s leave to be processed. Employees have noted that during the pandemic they do not want to attend a normal general practitioners office in fear or infection, or because simply, the wait times extend beyond their required absence period (e.g. single day absence for a migraine or food poisoning). Can I temporarily relax notice requirements?
Answer 9.
Yes.
General practitioners are experiencing high volumes of patients due to the pandemic and wait times to be seen by a doctor could be inflated. If employees do not excessively use paid personal/carer’s leave entitlements, it would be reasonable to waive notice requirements to ensure the health and safety of the employee. This is discretionary and policy and procedure should be considered by each individual employer.
Question 10.
An employee has been displaying flu like symptoms, can I request them to be tested for COVID-19?
Answer 10.
As discussed previously, testing criteria is determined by the state health departments. Any employee who is unwell should be encouraged to be absent from the workplace until they are feeling better, regardless of the illness they are presenting with. Speak to your staff, remind them of their entitlements to unpaid or paid leave and try not to spread fear when not necessary. Employers can not unfavourably victimise an employee for accessing these entitlements and should not prevent an employee from returning to the workplace if they have been cleared by a doctor in any instance.
Please note: Australia has limited cases of the COVID-19 virus across the country. Stand-down provisions are unlikely to apply without intervention from relevant government or health agencies and their educated advice. Employers should take a measured approach in line with their risk management plans to ensure businesses operate as usual during this time.
Need More Information?
Employers are encouraged to contact ER Strategies to discuss their specific situation. Please call 1300 55 66 37 to speak to one of our expert consultants.