COVID19 Employment Law Update

Introduction

As you would undoubtedly be aware, the New South Wales Government has modified the Public Health Restriction Order to allow for gatherings of not more than 10 persons in public places, allowing for bootcamps to resume and some cafes and restaurants to reopen. In addition, you may now have 5 visitors attend to your place of residence.

With the initial relaxation of the COVID19 restrictions, we now look towards the “new COVID19 Normal” which must include returning to work.

Can an employer require an employee to now return to work?

There has been a slight relaxation of the work from home requirement when the modified restrictions came into effect on 15 May 2020.
The Public Health COVID19 Restrictions on Gathering and Movement Order (No 2) 2020 [NSW] which provides that:

“The Minister directs that an employer must allow an employee to work at the person’s place of residence where it is reasonably practical to do so”.

This direction modified the previous order issued on 30 March 2020 where a person was restricted from leaving their place of residence without a reasonable excuse. A reasonable excuse in relation to work commitments was:

“Travelling for the purposes of work if the person cannot work from the person’s place of residence”.

In other words, the Public Health Order which came into effect on 30 March 2020 emphatically required a person to work from home if they were able. This position has now changed where a business can have regard to whether it is reasonably practical for a person to work from home.

This variation to the Public Health Order now provides greater consideration as to the individual needs of the business. In many cases working from home was possible, however, it may have only been viable for a limited period of time and come at some cost to the business (whether it be financial, loss of productively or a decrease in the standard of customer service).

If it is not reasonably practical for your employees to work from home, you may request that they return to work at your business’ usual place of business. You should however have regard to your obligations as an employer to provide a safe work environment.

Are employers liable if employees contract COVID19 whilst undertaking work duties and what should employers do to minimise liability?

The National Cabinet has agreed upon a 10 point National COVID19 Safe Work Principles that include, amongst others, that:

“As COVID19 restrictions are gradually relaxed, businesses, workers and other duty holders must work together to adapt and promote safe work practices, consistent with advice from health authorities, to ensure their workplaces are ready for the social distancing and exemplary hygiene measures that will be an important part of the transition.”

Employers and employees must work to “actively control the transmission of COVID19 in the workplace” and businesses must prepare for the possibility that there will be cases of COVID19 in the workplace and have a plan in place to “respond immediately, appropriately, efficiently, effectively”.

Safe Work Australia has provided information for workplaces as to how they can minimise the risk of exposure to and spread of COVID19. [Read more]

Businesses must give consideration to Work Health Safety (“WHS”) risk management which will likely include additional cleaning, the availability of hand sanitiser, allowing flexible start and finishing times to prevent employees being on public transport during peak hour, abolishing hot desks and redesigning office layouts to ensure social distancing,

As with any WHS matter, employees should be educated on the business’ COVID19 transmission reduction plan including that employees should not attend the office if they are unwell. Further, businesses should document their policies, practices and risk management plans in writing.

Employees may be entitled to workers compensation if they contract COVID19 whilst at work. They would likely need to establish that there was a clear link between the worker’s employment and contracting the virus (however this requirement has been removed in New South Wales for frontline healthcare workers).

Whilst an employer can encourage employees to download the Federal Government’s COVID-Safe app, an employer cannot require an employee download and use the app prior to returning to work or as a condition of their employment, even if the mobile device is owned by the employer.

Employers should be alive to the legal risks where employees request flexibility during this time, especially those who may be considered a vulnerable person who are at greater risk of serious infection from COVID19. How an employer considers and addresses an employee’s request for flexibility will determine the possible outcome of any claim for discrimination, adverse action against employment, unfair dismissal or any other breaches of the Fair Work Act, should a claim be forthcoming.

If you wish to discuss any matters arising from the effect COVID 19 is having on your business and your resulting legal obligations please do not hesitate to contact our Kate MacDonald.