The outbreak of Novel Coronavirus (COVID-19) has resulted in the World Health Organization’s declaration that this is a public health emergency of international concern. Australia continues to follow the health advice of expert groups including the Australian Health Protection Principal Committee (AHPPC) regarding travel restrictions and quarantine measures in order to reduce the number of cases in Australia and importantly to curtail community transmission, with talks of a Trans-Tasman travel bubble continuing. The ongoing impact of the pandemic may be causing concern and unrest for you and your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.
What are employers' obligations in respect of COVID-19?
The Australia Federal Government and each State and Territory government has authorised a broad range of actions to prevent the spread of COVID-19. Additionally, the Australian Government has activated the Australian Health Sector Emergency Response Plan for Novel Coronavirus (Emergency Response Plan) which sets key activities to minimise risk of further disease transmission in the event of a global pandemic, including 'social distancing' measures such as workplace closures, compulsory quarantine, or declaration of a state of emergency.
Current restrictions vary across Australia depending on each State or Territory and will continue to do so as the COVID-19 situation changes in each respective location. Broadly, employers should ensure that they are taking any necessary steps to protect their employees. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
As such, employers should carry out a risk assessment and consider any factors that may make employees particularly susceptible to infection. Employers should also circulate up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers and ensuring social distancing can be maintained in the workplace. Safe Work Australia also requires workplace cleaning to take place on a daily basis. We recommend issuing a reminder on action employees can take to help stop viruses like coronavirus spreading. Such advice may include:
Employers may also download COVID-19 specific signage for workplaces, which cover hygiene and distancing guidelines.
Certain businesses such as gyms, places of worship, and hospitality venues must also have COVID safe plans which provide advice on:
These businesses will also need to register that plan with their state or territory governments.
Businesses not required to maintain a COVID Safe Plan may do so as a matter of good practice.
We further recommend that employers notify employees where they can access more information if they are concerned. In Australia, employees can find up-to-date information on COVID-19 on the Federal and State Departments of Health websites. The WHO website also contains detailed information about how to reduce the spread of infection.
Can employers request or require information from an employee about potential or actual exposure to the virus?
The question of whether an employee can be asked to disclose to their employer where they have been, their potential exposure to the virus, or be required to provide information to an employer in order for the employer to provide confirmation to a customer/other employees sits firmly in the crossover between data privacy and employment.
In Australia, employee records are exempt from the operation of the Privacy Act 1988 (Cth) ("Privacy Act") where the collection, use or disclosure of an employee record is directly related to the employment relationship between the employer and the individual. It is unlikely that the act of collecting and disclosing the name and COVID-19 status of an employee to the rest of the workforce or to a customer would be an act that is directly related to the current employment relationship between the employer and the individual employee (whose status is being disclosed).
Accordingly, the Privacy Act would apply, and such information, to the extent it relates to the employee's health, is sensitive information. Sensitive information can be collected with the individual's consent, provided it is reasonably necessary for one or more of the entity’s functions or activities. In the absence of consent, an employer may also collect sensitive information in relation to COVID-19 under the uniform Work Health and Safety Act as an employer is required, as a primary duty of care, to ensure the safety and health of its workers so far as is reasonably practicable. This includes:
In these circumstances, employers should follow any health and safety risk assessments/procedures that it usually complies with under the uniform Work Health and Safety Act.
Subsequent use or disclosure of COVID-19 information as it relates to an employee should only be disclosed where it is directly related to the primary purpose of collection, and the employee would reasonably expect the employer to disclose the information for that secondary purpose. An employer would therefore have to consider the primary purpose of collection of the COVID-19 information which was communicated to the employee – to manage the relationship with the employee, or to comply with its obligations as an employer? Presumably the employer's primary purpose for collection in most circumstances at present would be to manage its occupational health and safety obligations to other employees.
Alternatively, the employer could use or disclose the employee's information as it relates to COVID-19 under the uniform Work Health and Safety Act, as again an employer is required, as a primary duty of care, to ensure the safety and health of its workers so far as is reasonably practicable.
Where an employer intends to disclose COVID-19 information to other employees, only necessary and proportionate information should be disclosed. Although consent is not strictly required owing to the provisions of the Work Health and Safety Act, we recommend that prior to any disclosure, employers should notify the individual of the proposed disclosure, discuss any concerns of the individual and document such notification and discussions.
Employers may also face situations where a customer/client requires travel or health information relating to their employees when visiting the customer/client's site. Where this applies, the employer should as a starting point should only provide generic reassurances to the customer/client. If this does not suffice, consideration should be given as to the necessity for such information to be provided. Unless there is a clear obligation arising under an Australian law, employee consent must be obtained before any such disclosure.
What should employers do if an employee is absent or infected?
The Australian government has passed a number of changes to the Fair Work Act 2009, as well as to modern awards, to deal with employee absence during the pandemic.
Generally, where a full-time or part-time employee is absent due to illness, or to care for a sick family member, the employee is entitled to take paid personal/carer's leave. Where an employee has exhausted their personal/carer's leave entitlements, employees should be permitted to use some other form of leave such as annual leave, or to take either a period of unpaid leave.
The Fair Work Commission has now also included paid pandemic leave in a number of awards including the Aged Care Award, the Nurses Award and the Health Services Award.
A number of awards have also been updated to include a new schedule which allows for 2 weeks' unpaid pandemic leave if an employee cannot work because they are infected or required to self-isolate. The leave is not accrued and is available to full-time, part-time and casual employees, in full, immediately. The schedule also includes flexible leave arrangements for employees and employers. Employees may now agree with their employer in writing to take double the amount of leave at half pay.
The Award Schedules are set to expire for amended awards on 31 March 2021.
Some State and Territory governments also provide financial assistance for employees who are required to take time off related to COVID-19, including where employees have been tested and need to self-isolate. As to a certain extent, each State and Territory has authority to manage certain aspects of its response independently; employers should be cognisant of the various laws and regulations in each state that its employees are working.
The Department of Health requires individuals to self-isolate for 14 days in the following circumstances:
In circumstances where an employee is not unwell but quarantined, employees should permitted to take leave including personal leave, annual leave or long service leave. Conversely, if the employee elects to stay at home as a precaution, they will need to make a request to work remotely (if possible) or apply to take some form of paid or unpaid leave.
What are employers' obligations where offices are partially or fully closed?
Where possible, employers should allow employees to work remotely. Where remote working is not possible, the employer's obligations will depend on State or Territory laws and public health orders, as well as on the nature of the employee's employment, for example, whether they are permanent or casual.
In circumstances where an employer directs employees not to attend the office, all permanent employees should continue to receive their usual salary. One of the current challenges in Australia arises where employees are employed on a casual basis. Often casual employees are engaged in industries that are not conducive to remote working. Additionally, casual employees have no entitlement to paid personal leave and so any workplace closures are likely to have a detrimental impact on these employees.
Employers may also consider directing or at least encouraging employees to take annual leave. However, in doing so, employers should ensure they are complying with relevant notice periods prescribed in a contract of employment, or any applicable industrial instrument.
What financial assistance is the Government providing to employers?
Assistance changes depending on the State or Territory. Federally, businesses may access the JobKeeper and JobMaker assistance schemes.
Eligible employers may access JobKeeper payments of up to $1,000 per fortnight for every eligible employee they employ.
Employers are eligible where all of the following apply:
JobKeeper from the 28th of September
From the 28th of September 2020 the JobKeeper payment scheme will changed for businesses across the country. While the scheme has been extended to 28 March 2021, eligibility will depend on actual turnover in the relevant periods, and payment amounts have been reduced.
In addition to current JobKeeper requirements, businesses will now need to meet a further decline in turnover test.
Businesses will need to show that their actual GST turnover has fallen over the September and December 2020 quarters relative to a comparable period (generally the corresponding 2019 period) using the following guide:
The Commissioner of Taxation may also choose to set out alternative tests in specific circumstances where it is not appropriate to compare actual turnover.
Employees will be eligible in the extension periods if they:
Employees are eligible for a fortnightly payment of $1,000 where they meet the Jobkeeper requirements set out above and:
All other eligible employees and business participants are eligible for the lower rate of $650 per fortnight.
Businesses must nominate which payment they are applying for with respect to each employee.
JobMaker Hiring Credits
The Federal Government has introduced a new scheme, aimed at promoting employment for young people. Under the JobMaker Hiring Credit eligible employers can claim up to $100 or $200 per week for 12 months for each eligible employee aged between 16 and 35 years who is hired between 7 October 2020 and 6 October 2021. The payment can be claimed quarterly, in arrears, from the Australian Taxation Office (ATO) from 1 February 2021.
There are a number of eligibility requirements for employers such as:
The 'additionality criteria' requires an increase in the total employee headcount from 30 September 2020 and an increase in payroll as compared to the three months prior to 30 September 2020.
To be eligible, employees must have, among other requirements:
Employees may be employed on a permanent, casual or fixed term basis.
Registration for the scheme opened on 7th December 2020 through the ATO's online services.
Where can employers and employees access local and national advice?
In Australia, the following authorities can provide relevant guidance on COVID-19: