The outbreak of Novel Coronavirus (COVID-19) has become a worldwide pandemic. Based on 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 self-quarantine measures in order to reduce the number of cases detected in Australia and delay the onset of community transmission. Understandably, this may be creating great concern and unrest for you and amongst 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?
At time of writing there are no specific mandatory obligations for employers in respect of COVID-19. However, the Health Minister has authorised a broad range of actions to prevent the spread of disease. 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.
Unless or until such time as the government implements such measures, 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 consider circulating up-to-date information on good hygiene practices and provide any necessary equipment to facilitate this, such as hand sanitisers. For example, 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
- Try to avoid close contact with people who are unwell
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) 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 1988 (Cth) 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?
Australian employment laws do not contemplate situations such as we are experiencing with COVID-19. As such, employers will need to formulate their own arrangements that not only meet the operational requirements of the business, but take into account the needs of employees.
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 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 left or transited through mainland China or Iran in the last 14 days; and
- individuals who have left, or transited through the Republic of Korea on or after 5 March.
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?
At the time of writing, the Emergency Response Plan provides that the closing of workplaces is not yet recommended/required.
Where possible, employers should encourage employees to work remotely. Where remote working is not possible, the employer's obligations will depend on the nature of the employee's employment, for example, whether they are permanent or casual.
In circumstances where an employer directs employees no 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.
Where can employers and employees access local and national advice?
In Australia, the following authorities can provide relevant guidance on COVID-19: