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Continuing to Work through COVID-19: Employer and Employee Obligations

chris mills

Chris Mills

The sudden onset of the COVID-19 pandemic and the protective measures mandated by Commonwealth and State Governments are causing significant disruption and uncertainty for both employers and employees. At the date of this update, the Queensland Chief Health Officer has directed workers to work from home if the work can reasonably be performed from home, but otherwise made allowance for workers to attend work provided they do not engage in non-essential business activities. Non-essential businesses are listed in the Closure of Non-essential Business Health Direction.

Where work cannot reasonably be performed from home, workers may still be expected to attend a location other than their home to perform their work. At present, the Chief Health Officer’s Home Confinement Health Direction continues to permit workers to leave their homes to perform work. This does not, however, relieve both employers and employees from their obligations under the Work Health and Safety Act 2011 (Qld) (‘WHSA’).

In this update, we set out some of the guiding principles for both employers and employees to bear in mind when considering how best to continue working for the duration of the extraordinary measures put in place by the Government.

 

Documenting Changes to Work

Notwithstanding all of the statutes, regulations and industrial instruments in place to govern employment in Australia, employment is still based on contract. New and unprecedented measures are being implemented with some haste, but the parties to an employment relationship are still expected to comply with the terms of their contracts and any applicable workplace laws or instruments.

Employers should take care that any steps they are implementing to protect their businesses or manage risks to their workforce comply with their contracts, Enterprise Agreements, applicable Modern Awards and other workplace laws. In some cases it may be necessary for employers to make sure that any variations to employment contracts or employment policies are properly documented to avoid the possibility of costly dispute in the future. 

We recommend employers to exercise caution that the steps they take now to protect their businesses do not create substantial liability for them at a later stage.  Before implementing any changes, employers should ensure they are promptly and properly documenting workplace changes and, in the case of major changes to employment, that advice has been taken to ensure legal compliance. 

 

Employers are Responsible for Ensuring the Health and Safety of Workers

The ultimate responsibility for ensuring the health and safety of workers remains with the employer. All employers should familiarise themselves with any Public Health Directions, any guidance and recommendations given by public authorities concerning transmission of COVID-19 and, if necessary, any medical advice specific to the environment in which their workers will be performing their duties.

The Public Health Directions place an impetus on employers to facilitate the ability of workers to work from home. It is not always reasonable for work to be performed from home. If a worker is required to physically attend another location to perform his or her duties, the employer is required to take reasonable steps to ensure that the risk of transmission of the virus is contained at that location.

Employers are also responsible to ensure the health and safety of workers who are working from home. 

Employers ought to take care that any policies and procedures concerning health and safety are up to date and that they are reasonably able to ensure the safety of workers, whether they are working from home or in their usual work environment. 

It is better to have considered all possibilities and be prepared for them in advance than to be put in a situation where an urgent response may be required under the present conditions.

 

Workers are Responsible to Assist Employers

Workers are obliged to ensure that they do not put their own safety or the safety of other workers at risk and to comply with any policies, procedures or directions given by employers in the interests of ensuring health and safety.

Workers who are sick, are displaying signs of infection or have been in contact with someone who has received a positive COVID-19 diagnosis, should refrain from attending work. They should take the steps required by their employer (in line with any Enterprise Agreement, Modern Award or the National Employment Standards) to take personal leave. Workers who are caring for a person in that situation should take the appropriate steps to take carer’s leave (whether paid or unpaid).

Non-compliance by a worker with a Public Health Direction will not be excused only because the worker was required to participate in a certain activity by an employer. While employers should take all reasonable steps to ensure that they do not direct workers to engage in activity that breaches a Public Health Direction, workers should also familiarise themselves with what is required of them individually and be ready to discuss those requirements with an employer.

 

Directions to Perform Duties

Provided an employer is complying with the Public Health Directions and its responsibilities under the WHSA when directing employees to perform work, workers remain expected to comply with reasonable directions given by their employer to perform work.

If a worker has a reasonable concern that he, or she, would sustain ‘immediate or imminent exposure to a hazard’ by performing work as directed, the worker has a right to refuse to perform that work. 

 

Employees taking Unilateral Precautions

We have become aware that workers have been making use of online services that offer video-conferencing consultations with General Practitioners (‘GPs’) to obtain medical certificates to excuse the worker from attending work not by reason that the worker is ill, but by reason that the worker may be exposed to higher risk in the event of becoming ill.

Such medical certificates (it is contended) can be treated as disclosures by a worker that the worker may be at higher risk if exposed to COVID-19, in which case an employer will be expected to take that risk into account when implementing risk management steps. They do not, however, entitle a worker to take leave.

It is not the role of a worker’s treating GP to decide whether or not it is safe for a worker to attend work. It is the role of the employer. 

 

The Importance of Patience and Understanding

Notwithstanding these matters, the Government has made it clear that one of its priorities through this time is to ensure that workers remain in connection with their workplace until things return to normal. Employers are understandably stressed about the viability of their businesses and workers are understandably anxious about the prospect of exposure to the virus. During this time it might be easy for tempers to fray and tension to boil over.

We anticipate that dismissals arising from misunderstandings between employers and workers about workplace expectations will, more likely than not, be considered unfair by the Fair Work Commission, even if the employee’s conduct might ordinarily be inappropriate. That does not mean that workers will be able to take advantage of the situation to excuse inadequate performance or misconduct.

Now is a good time for employers and their workers to take the time to align their goals to get through this situation. Aligned goals and good communication reduce the likelihood of destructive patterns of conflict. If workers understand that their concerns are being heard by their employers and employers understand that their workers are committed to helping the business see this situation through.

If you have any questions about your obligations as an employer or a worker or would like assistance developing policies and procedures to be implemented for at-home workers or workers who are expected to continue working in their normal work environment, please do not hesitate to contact our expert team via the link below.

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