Keta Roseby Workplace Lawyer

COVID-19 and the workplace – FAQs

By Bek Barr In Employment law July 1, 2021

COVID-19 and the workplace have provided a constant source of change over 12 months for both employers and employees.

We’ve put together some FAQs to help you navigate this ever-changing landscape in the workplace.

Your questions around payment of employees, mandatory testing and vaccination and more are answered below.

Lockdown – COVID-19 in the workplace

Q: Can an employer stand employees down during lockdown?

A:  Employers can stand down employees where:

  • The business has closed because of an enforceable government direction (which means the employee/s cannot be usefully employed, even at another location); or
  • there is a stoppage of work due to lack of supply for which the employer cannot be held responsible.

It is not lawful to stand down an employee because of a deterioration of business.

Before standing down, an employer should communicate with their employees. This should include whether a working from home arrangement can be applied, whether a change of duties, hours or rosters can be implemented or taking paid or unpaid leave is an option.

The Fair Work Commission provides a useful stand down CHECKLIST.

Q: Are employers required to pay employees during stand down?

A:  Employers are not required to pay employees during a stand down unless:

  • the employee is able to work from home (and the employer agrees);
  • the employee takes annual leave;
  • the employee takes long service leave (if applicable); or
  • the employee takes annual leave at half pay (if agreed or covered by relevant Award).

An employee is not entitled to sick, carer or compassionate leave during stand down.

Q: When can employees work from home during lockdown?

A: If the type of work allows your staff to complete their roles from home, then employees are entitled to work from home and at the same pay as if physically attending the workplace.

  • However, it is important to consider both the employer’s and employee’s specific circumstances and come to agreement jointly about how working from home will operate.  Good communication is paramount.
  • Employers must ensure the arrangement is compliant with any of the following applicable industrial instruments:
    • Employment contract
    • Modern Award
    • Enterprise Agreement
    • Workplace Policy

Q: What options are available for employees if the workplace is not an “Essential business activity’ and not permitted to operate during lockdown? ?

A:  Discuss whether working from home is an option.  If not, discuss leave options:

  • employees can take annual leave;
  • employees can take long service leave (if applicable); or
  • annual leave at half pay (if agreed or covered by a relevant Award).
Self-isolation – COVID-19 and the workplace

Q:  Are employers required to pay employees while they are in self-isolation?

A: Employers are not required to pay employees during self-isolation (even if it is a government-enforced direction), unless:

  • the employee is able to work from home (and the employer agrees);
    • the employee is sick and takes sick leave;
    • the employee takes annual leave;
    • the employee takes long service leave (if applicable); or
    • the employee is entitled to take annual leave at half pay (if agreed or covered by relevant Award).

Alternatively, an employee may be entitled to take unpaid pandemic leave (if agreed or covered by relevant Award). 

Q: If an employee is not entitled to unpaid pandemic leave, do they have to take annual leave for the period of self-isolation?

A:   If an employee is not entitled to take unpaid pandemic leave, the employee will be required to request one of the following options to be lawfully absent from the workplace, as follows:

  • working from home (if the employer agrees);
    • if the employee is sick, request sick leave;
    • request long service leave (if applicable);
    • request annual leave; or
    • request annual leave at half pay (if agreed or covered by relevant Award).

Q:  Can an employer require an employee to be tested for COVID-19?

A:   The Fair Work Commissioner provides that an employer can require a person to get tested for COVID-19 provided it is a lawful and reasonable direction.

  • This could include if the employee has been exposed to someone who has had COVID-19, they present all or most of the relevant symptoms of COVID-19 or have been within an Impacted Area (Hotspot). This is in-line with their duty to maintain workplace health and safety in the workplace.

Q:  Are employees required to stay away from the workplace following a COVID-19 test and, if so, do they get paid?

A: Yes, employees are required to self-isolate and therefore stay away from the workplace pending results of a COVID-19 test. Employers are not required to pay employees while waiting for the results of a COVID-19 test, unless:

  • the employee is able to work from home (and the employer agrees);
  • the employee is sick and takes sick leave;
  • the employee takes annual leave;
  • the employee takes long service leave (if applicable); or
  • the employee is entitled to take annual leave at half pay (if agreed or covered by relevant Award).

Alternatively, an employee may be entitled to take unpaid pandemic leave (if agreed or covered by relevant Award). 

If the employee tests positive for COVID-19, they are entitled to take sick leave.

Q:  If an employee is not entitled to unpaid pandemic leave, do they have to take annual leave while waiting for their COVID-19 test result?

A:   If an employee is not entitled to take unpaid pandemic leave, the employee will be required to request one of the following options to be lawfully absent from the workplace, as follows:

  • working from home (if the employer agrees);
    • if the employee is sick, request sick leave;
    • request annual leave; or
    • request annual leave at half pay (if agreed or covered by relevant Award).

Helpfully, results of COVID-19 testing are generally received quickly.

Vaccination – COVID-19 and the workplace

Q:  Can an employer require an employee to get a COVID-19 vaccination?

A:  In some situations:

  • In specific industries, the Queensland Government has made it mandatory for some workers to get vaccinations. This generally affects:
    • Health care workers; and
    • Queensland Ambulance services.
  • Where there is an agreement requiring vaccination.
    • This may include when an employment contract, enterprise agreement or other registered agreement includes a provision requiring the employee to get vaccinated specifically for COVID-19.
  • If there is no agreement, an employer can require an employee to get a COVID-19 vaccination if the direction is lawful and reasonable. This is assessed on the facts of each case.
    • This may include work where the employee interacts with persons who are at increased risk of being infected or come into close contact with people who have increased vulnerability such as border security, hotel quarantine or healthcare or aged care. 
  • Employers must be careful to not breach anti-discrimination laws. The employer must not treat an employee unfavourably if they have not consented to being vaccinated by reason of, for example, disability, pregnancy or political opinion.
    • Examples of discrimination may include requiring an employee who has an underlying health condition putting them at increased risk of complications should they receive the vaccine or requiring an employee who is immunocompromised to receive a vaccine.
    • Should an employee refuse to receive the vaccine based upon their belief that the vaccine is not safe, Employers should exercise caution. The law is unclear about whether vaccine hesitancy is a valid objection as a political belief. Employees should receive appropriate legal advice in this instance.

When in doubt in this regard, employers and employees should seek appropriate legal advice.

Q:  Can an employee take sick leave if feeling unwell following a vaccination?

A: Yes.

General

Q:  Can an employee refuse to come into work if they feel unsafe because of COVID-19?

A:   If an employer gives an employee a lawful direction to perform work and the direction is reasonable and in line with the employer’s legal obligations, then an employee cannot refuse.

  • Should the employee continue to refuse, the employer may be entitled to take disciplinary action against the employee which, depending on the circumstances, can include termination of employment. However, termination must be undertaken in accordance with the relevant legislation / industrial instrument.
  • Should an employee hold reasonable concern about their health or safety it may be reasonable to refuse. However, legal advice should be sought.
  • If the employee is concerned, efforts should be made to provide alternative workplace arrangements where possible.
Penalties for breach

Q:  Are there any penalties for breaching the health directions?

A:  Yes, there are fines and potential imprisonment.

Fines for breaching quarantine or self-isolation apply.A person who is required to quarantine or isolate under a health direction must comply with the terms of the direction to quarantine or isolate and may not leave, or receive visitors at the premises in which they are quarantining or isolating unless permitted under the terms of those orders or directions.

Failure to comply with these terms results in an offence under s 362D of the Public Health Act 2005.

The maximum penalty is a $13,785 fine or six months imprisonment.

KETA ROSEBY | Consultant

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Ph: (07) 4758 5858

E: keta.roseby@purcelltaylor.com.au

This post contains general advice.  Each circumstance will vary and must be considered based on its individual facts.  Please obtain legal advice as necessary.