IR Legal Solutions answers some of the common 'what happens if...' questions being asked by employers about the impact of Coronavirus (COVID-19), so they know what to do if such issues arise in their business.

What happens if an employee or their family member / member of their immediate household is sick with COVID-19?

For full-time and part-time employees that cannot attend work:

  • because they are sick with COVID-19, they may access their accrued paid personal leave. If they run out of accrued paid personal leave, they could take unpaid leave or seek access to other accrued leave entitlements, such as annual leave and/or long service leave (if this is accessible to them);

  • because they need to care for a family member or a member of their immediate household who is sick with COVID-19, or suffering an unexpected emergency, they are entitled to take accrued paid carer’s leave. They are not entitled to take paid personal leave, as they are not sick. The employee could also seek access 2 days of unpaid carer's leave per occasion, other accrued leave entitlements, including annual leave and/or long service leave (if this is accessible to them) or agree to arrangements, where appropriate, to work from home or unpaid leave.

Employees cannot be forced to take their paid personal/carer’s leave entitlements, so in such situations where they elect not to use such accrued paid leave entitlements, they are not entitled to be paid, and so should be placed on leave without pay if they do not wish to access other paid leave available to them.

For casual employees they are entitled to 2 days of unpaid carer’s leave per occasion under the Fair Work Act 2009 (Cth) (FW Act).

Employees should still provide you with evidence of the illness or unexpected emergency in accordance with your relevant policy, industrial instrument (Modern Award/Enterprise Agreement), employment contracts or company policies or procedures in place in your business.

Remember you cannot take any negative action against an employee for taking unpaid carer's leave.

Prior to any return to work, make sure the employee provides you with a current medical clearance from a medical practitioner.

What happens if an employee must self-isolate?

The employee must comply with Government directive to self-isolate. A 14 day self-isolation period will now be a compulsory requirement for all persons returning to Australia from overseas. Failure to comply with this requirement will now be an offence. If an employee comes into close contact with a diagnosed COIVD-19 case, they must also self-isolate in accordance with the current Government directives.

If the self-isolation requirements apply to the employee or they are unwell, the employee cannot attend your workplace. Remember also that the employee has a legal obligation to ensure their own health and safety, as well as that of others at your workplace.

Where you can, come to an agreed arrangement with the employee for the self-isolation period, for example; working from home if they are well and that works operationally, taking personal/carer’s leave if they are sick or need to care for a sick or an immediate family member or person in their household, an agreement to take accrued annual leave or an agreed to an advance on such leave, or access to other leave, such as long service leave (if available to time) or arranging special leave or leave without pay.

What happens if an employee calls in sick?

You should follow your normal processes with regards to an employee taking an absence due to sickness. This includes requiring the employee to provide notice and evidence in accordance with your relevant procedure and applicable industrial instrument (Modern Award/Enterprise Agreement) or employment contract, and if it is related to COVID-19 (in that they are sick with it or a close contact is) ensure the employee provides a current medical clearance from a medical practitioner prior to returning to work. Also assess what other steps you may need to take with remaining employees if that employee diagnosed with COVID-19 or has been in close contact with a confirmed COVID-19 case, if they have been working others in your workplace.

What happens if an employee refuses to, or does not want to, attend work as a precaution?

You should ensure that you understand the reason an employee is refusing or not wanting to attend work. For example; is it so that they can comply with current Government directives to self-isolate, are they at a higher-risk of infection, it is because they are sick etc, before determining the appropriate leave or arrangements for them. Employees in such cases could request to work from home, if this is operationally possible and they are fit to do so, or take some paid or unpaid leave. These arrangements should still be subject to your normal application process and approved in accordance with your operational requirements.

What happens if you want your employees to stay at home for now?

As an employer, you have an ongoing obligation to take all reasonably practicable steps to ensure the health and safety of your employees and others at your workplace. If you direct an employee not to work (which is not a stand down arrangement as per the FW Act, Enterprise Agreement or employment contract or because of a Government imposed self-isolation requirement), there would ordinarily be a requirement to pay the employee whilst complying with that direction, or you could come to an agreed arrangement with the employee, including for them to work from home, or access some paid leave during the period.

Remember that work health and safety laws still apply even when an employee is working from home, so your business should have a system in place to understand and reduce the risks to an employee working from home. Usually a working from home policy and checklist will assist in managing and reducing such risks. Contact IR Legal Solutions if you require advice to put such arrangements in place and we can assist in providing a comprehensive, up to date policy and/or checklist to best protect your business.

What happens if an employee cannot return from overseas with the current travel bans in place?

Ensure you are in contact with that employee, and provide any information or support you can at this time. If it is a work-related trip, keep them up to date with any repatriation arrangements, based on current travel bans, any self-isolation requirements on return etc. Ideally, try and come to an agreed arrangement with the employee during this time, including whether some paid leave can be accessed, or other arrangements, such working from overseas or unpaid leave can be put in place.

Available advice and assistance

Employers must ensure that before they act in response to COVID-19 in their workplace, that they check the relevant industrial instrument (Modern Award /Enterprise Agreement), employment contracts and policies that are in place and ensure compliance.

If you need urgent advice or assistance in managing the impact of COVID-19 in your workplace, please contact IR Legal Solutions to discuss.

These steps should not be a substitute for legal advice and are for information only. Employers should obtain advice that is specific to their circumstances and business operations, and not rely on this publication as legal advice.