Safety legislation requires that an employer provides so far as is reasonably practicable a safe place of work. The risk of an employee contracting COVID-19 in the workplace triggers a statutory obligation on employers to assess that risk and implement any practicable measures to reduce this risk as far as is possible.
Employees over 70 or employees over 60 with a chronic medical condition are more vulnerable than other employees. In the case of each of these employees, a risk assessment should be undertaken having regard to the characteristics of the worker, the workplace and the work they ordinarily perform.
When conducting a risk assessment for each employee, the employer needs to understand each individual’s medical condition. There are a number of medical conditions which increase a person’s vulnerability if they were to be infected with COVID-19, including respiratory illness or a heart condition.
Employers need to consider how they will obtain the information they need about a person’s medical condition. Ideally, this will be obtained from the employee’s GP. The doctor should be informed in writing about the employee’s role, work environment and mitigations in place for COVID-19. The employees concerned have a legal obligation to cooperate with employers about these matters.
Once the employer has sufficient medical information to assess the risk of an employee contracting COVID-19 in the workplace, it needs to assess what practicable measures, if any, exist to reduce this risk. Risk measures might include temporarily redeploying these workers to a role in which their interaction with other persons is minimised.
Employers need to respect the privacy of the health information collected about employees and not use it for any purpose other than to ensure a safe working environment, as an employee may claim that they are being discriminated against because of their medical condition or age. In most cases the measures will not be unlawful when taken to ensure the employee can perform the inherent requirements of the role in a working environment that meets legal standards.
If the employer concludes that the vulnerable employee cannot work in a safe manner while the risk of COVID-19 infection subsists, then the employee will have to remain at home.
If they are unfit for work because of a medical condition that makes them vulnerable to infection, they are likely to be entitled to paid sick leave. If the vulnerability arises simply because of their age (i.e. they are 70 or older and they cannot be given safe work), then their absence will be unpaid leave, unless they agree to take paid annual leave or long service leave, or the employer is willing to grant them some special paid leave.
The vast majority of modern awards have been amended to provide for up to two weeks unpaid ‘pandemic leave’ (if commencing before 30 June 2020) if an employee is required, by government or medical authorities, or acting on the advice of a medical practitioner, to self-isolate and is consequently prevented from working, or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic, in circumstances where the employee is required to work at premises operated by an employer.