The World Health Organization (WHO) has declared the coronavirus outbreak a pandemic, and the situation for employers is far from over.
Below are some common scenarios employers are facing, and information on how to properly implement employee entitlements.
An employee has contracted COVID-19 / has been exposed to someone with COVID-19 / is a personal carer for a family or household member who is ill or is experiencing a family emergency.
Personal leave can be used in this situation. An employee who is unfit for work due to illness or injury can access their personal leave. This can also be done if employees are required to care for a family or household member who is ill or injured, or because of an unexpected family emergency. A school close-down due to a coronavirus outbreak may meet the definition of an emergency. It is also important that during this time employers exercise flexibility.
Generally, an employer cannot direct an employee to use their personal leave entitlements.
An employee is mandated to self-isolate upon return from personal travel / is voluntarily self-isolating, but is not actually ill or injured.
The Fair Work Act 2009 (Cth) (FW Act) does not provide for these specific circumstances. It is likely best practice for the employer and employee to come to an agreed arrangement, which would vary on a case-by-case basis. Considerations that may need to be taken into account include:
- Can the employee work remotely from home? If so, the employee will be paid ordinary rates of pay.
- If not, they should be entitled to access annual leave or long service leave by agreement.
- If accrued leave has been exhausted, they should be entitled to unpaid leave for the self-isolation period.
Can the employer direct an employee to take annual leave or long service leave?
If an employee has sufficient accrual of paid leave, the employees can be directed to take annual leave in a shutdown. A shutdown is more than a business operating at reduced capacity. It requires the business not to be operating in any significant way. However, you can retain an essential, skeleton workforce.
In the case of award-covered employees e.g. clerical and admin staff, you need to give 8 weeks’ notice of the forced leave and you can’t reduce their leave accrual below 6 weeks.
In NSW and WA you can direct employees to take long service leave with one month’s notice. In other States the notice requirement is 2-3 months (you can’t direct employees to take long service leave in Tasmania).
Given the coronavirus pandemic, employers may struggle to provide the luxury of written notice. It is best practice in this instance to come to an agreed arrangement with the employee.
We are forced to shut down, do we need to pay our employees?
Under the FW Act, an employer is permitted to stand down staff without pay where staff cannot be usefully employed because of a stoppage of work for which the employer cannot reasonably be held responsible. During the period of stand down, the employment relationship remains on foot but is effectively suspended. Leave entitlements continue to accrue during the stand down period.