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. The Australian Health Protection Principal Committee (AHPPC) has (at the time of writing) advised that Australia should continue with current travel restrictions and quarantine measures in order to reduce the number of cases in Australia and importantly to curtail community transmission. 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:
- cover your mouth and nose with a tissue or your sleeve (not your hands) when you cough or sneeze;
- put used tissues in the bin immediately;
- wash your hands with soap and water often – use hand sanitiser gel if soap and water are not available; and
- try to avoid close contact with people who are unwell.
Employers may also download COVID-19 specific signage for workplaces, which cover hygiene and distancing guidelines.
Businesses such as gyms, places of worship, and hospitality venues must also have COVID safe plans which provide advice on:
- hygiene and safety;
- physical distancing;
- recording contact details of staff and customers; and
- employee well-being.
These businesses will also need to register that plan with their state or territory governments.
Businesses not required to maintain a COVID Safe Plan are recommended to do so anyway as a matter of good practice.
We further recommend notifying 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:
- the provision of information that is necessary to protect all persons from risks to their health and safety; and
- that the health of workers is monitored for the purpose of preventing illness of workers arising from the conduct of the business or undertaking.
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 30 September 2020.
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:
- individuals who have been in close contact with a confirmed COVID-19 case;
- individuals who have returned to Australia from overseas; and
- in some States and Territories, individuals who have returned from another Australian State or Territory.
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 assistance scheme.
Eligible employers may access JobKeeper payments of $1,500 per fortnight for every eligible employee they employ.
Employers are eligible where all of the following apply:
- On 1 March 2020, you carried on a business in Australia, or were either;
- a not-for-profit organisation that pursued your objectives principally in Australia, or
- deductible gift recipient (DGR) endorsed either, as a public fund or for a public fund you operated, under the Overseas Aid Gift Deductibility Scheme (DGR item 9.1.1) or for developed country relief (DGR item 9.1.2)
- You employed at least one eligible employee on 1 March 2020 or 1 July 2020, depending on the JobKeeper fortnight being claimed for;
- Your eligible employees are currently employed by your business for the fortnights you claim for;
- Your business has faced either a:
- 30% fall in turnover (for an aggregated turnover of $1 billion or less)
- 50% fall in turnover (for an aggregated turnover of more than $1 billion)
- 15% fall in turnover (for ACNC-registered charities other than universities and schools).
Employees are eligible if they:
- are currently employed by you;
- agree to be nominated by you;
- either were an eligible employee for a JobKeeper fortnight ended before 3 August 2020 using the 1 March test or they meet certain conditions at 1 July 2020 (the 1 July test).they were employed by you as either a:
- a full-time, part-time or fixed-term employee; or
- a long-term casual employee (employed on a regular and systematic basis for at least 12 months) as at 1 July 2020 and not a permanent employee of any other employer.
- were aged 18 years or older at 1 July 2020;
- were either:
- an Australian resident; or
- an Australian resident for the purpose of the Income Tax Assessment Act 1936 and the holder of a Subclass 444 (Special Category) visa.
- were not in receipt of government parental leave or payments for workers compensation for total incapacity for work.
JobKeeper from the 28th of September
From the 28th of September 2020 the JobKeeper payment scheme will change for business across the country. While the scheme will be extended to 28 March 2021, eligibility will depend on actual turnover in the relevant periods, and payments will change to a two tier system. This will happen across two periods, 28 September 2020 - 3 January 2021 (the first period) and 4 January 2021 – 28 March 2021 (the second period).
In addition to current JobKeeper requirements, businesses will now need to meet a further decline in turnover test for the two periods of the extension.
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:
- 50 per cent for those with an aggregated turnover of more than $1 billion;
- 30 per cent for those with an aggregated turnover of $1 billion or less; or
- 15 per cent for Australian Charities and Not-for-profits Commission-registered charities (excluding schools and universities).
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:
- are currently employed by an eligible employer;
- were for the eligible employer:
- a full-time, part-time or fixed-term employee at 1 July 2020; or
- a long-term casual employee (employed on a regular and systematic basis for at least 12 months) as at 1 July 2020 and not a permanent employee of any other employer;
- were aged 18 years or older at 1 July 2020;
- were either:
- an Australian resident; or
- an Australian resident for the purpose of the Income Tax Assessment Act 1936 and the holder of a Subclass 444 (Special Category) visa as at 1 July 2020, and
- were not in receipt of government parental leave or payments for workers' compensation for total incapacity for work.
For the first period, employees will be eligible for the higher payment of $1,200 per fortnight for the first period and $1,000 for the second where they meet the Jobkeeper requirements set out above and:
- were working in the business for 20 hours or more a week on average in the four weeks of pay periods before either 1 March 2020 or 1 July 2020;
- for eligible business participants who were actively engaged in the business for 20 hours or more per week on average.
All other eligible employees and business participants will be eligible for the lower rate of $750 per fortnight across the first period and $650 per fortnight across the second.
Businesses must nominate which payment they are applying for with respect to each employee.
Where can employers and employees access local and national advice?
In Australia, the following authorities can provide relevant guidance on COVID-19: