The Punnett – Planning for Coronavirus (COVID-19) in your small business

By March 12, 2020 Newsletter
The Punnet

Planning for the implications of Coronavirus (COVID-19) in your workplace

Updated as at 12th March 2020

At the forefront of Australian and worldwide news, are the reports of a pandemic spread of a novel infectious disease (in this case the Coronavirus – COVID-19). Businesses need to be taking pro-active steps in planning for potential repercussions that may affect your business or your employees.

A pandemic could represent a significant threat to the ongoing viability of small businesses and may require adjusting work practices and staffing arrangements to maintain business continuity.

There is potential that this issue may cause significant absenteeism across your workplace, due to employees being ill, school closures or the need to care for sick family members. There may even be a potential for business shut down in areas of high contagion. Some employees may not wish to come to work only out of fear of becoming ill.

Under the OHS Act, employers are required to take all reasonably practicable steps to protect the health and safety at work of their employees. Employees are also expected to cooperate with their employer in implementing and practising risk control methods.

Employers and employees must also comply with Government public health advice and emergency measures.

How to Prepare

This is new territory for Australian businesses – we have not yet had to prepare for the possibility of a pandemic – there is no precedent. You need to work within existing employment laws to ensure any response is not breaching your obligations as an employer.

Businesses need to be proactive – setting a plan that will be specific to your business setup and industry. You need to stay up to date with the latest information from the experts and communicate your intentions to your employees, treating every situation on a case by case basis.

At a minimum:

  • Allocate a key person in your business to keep up to date with the latest advice, and to respond to any questions or concerns from employees.
  • Consider the information below and plan for how your business will treat each one.

Take steps to manage the potential effects of COVID-19 (or any other flu-like virus).

  • Hygiene around the office – ensure access to hand sanitizers, visibility of washing hands signs, cleaning of surfaces and frequently used areas. This may include increasing the frequency of cleaners.
  • Advise employees not to attend work if they feel unwell to prevent infection of other employees (as you should in any flu season).
  • Encourage “social distancing” and limit face to face interactions – can meetings be conducted by video? Can employees work remotely or from home? Are handshakes necessary?

Create a COVID-19 Plan

Your business plan for COVID-19 should consider the different scenarios that may affect your industry. This plan needs to be flexible and should be adjusted depending on the latest advice (see Where do I find more information? below). Below are scenarios to consider in your plan.

What do I tell my employees?

The health and safety of your employees and those they come into contact with must be your top priority. This should dictate the approach you take to responding to employees that may have come into contact with COVID-19.

If an employee tells you that they:

  • Are feeling unwell and may be suffering flu-like symptoms;
  • have been in contact with someone who has or may have been in contact with someone who has COVID-19; or
  • have travelled to an area affected by COVID-19 (such as China, Iran, Italy),

they should be directed to the most recent Australian Government advice and seek medical advice immediately.

It is also advisable to:

  • Direct employees to declare any upcoming or recent travel (including areas through which the employees have transited) so that employers can assess the prospect of risks to health and safety arising from staff movements generally; and
  • provide employees with simple information regarding how they can maintain good hygiene.

Employees are unable to attend work

Personal Leave

If an employee informs you that they have contracted the COVID-19 or need to care for a member of their immediate family or household who has contracted COVID-19, then they will be entitled to take personal leave under the NES. This will also be available to an employee who needs to care for a child in the event of a school closure.

Personal/carers leave is not available where an employee has come into contact with a person who has COVID-19 or where an employee returns from travel to a high-risk area (as defined by Government advice) but is not yet sick themselves.

To qualify for personal leave, an employee must be “not fit for work” because of an illness or injury affecting them. It is unlikely that this pre-requisite will be met by persons who are not yet diagnosed as ill but merely require isolation.

How should you pay employees who are isolated, but not diagnosed with COVID-19?

Where employees require isolation but have not been positively diagnosed; in most cases, you should consider practical solutions to address the employee’s absence. For example:

  • Can you allow the employee to work from home? This ensures a level of productivity is retained and enable the employee to continue to be paid wages during the isolation period; or
  • where working from home is unavailable, employers may wish to provide access to annual leave or discretionary paid leave to employees so that they do not suffer from a loss of pay during the isolation period.

As an employer, it is worthwhile considering whether discretionary options can be accommodated for some or all positions in their business. You will need to balance the short-term cost associated with these measures against the longer-term benefits.

What if testing is unavailable for employees in isolation?

It is uncontroversial that:

  • It is an inherent requirement of any employment contract that employees are required to carry out their employment without endangering the safety of other persons; and
  • to be paid for their service, employees need to be “ready, willing and able” to work.

These principles will govern an employer’s approach to employees who are directed to isolate in circumstances where testing is unavailable (or refused by the employee).

Two scenarios are likely to arise:

  • Firstly, in some cases, an employee may have had levels of contact with persons exposed to COVID-19 which means the risk to safety presented by the employee’s presence at work is materially higher than other employees. By way of example, if an employee has just returned from mainland China or has been living with a person who has contracted COVID-19, the employee will likely present significantly higher risks to the workforce than most other workers.
  • In other cases, an employee might have had a level of contact that causes an employer some anxiety but not a material concern. By way of example, the employee’s child might have attended a school where there was a Coronavirus diagnosis, or the employee may have returned from travel to an area designated by the Australian Government’s health advice as ‘moderate risk’. While there is some risk associated with contact with the relevant employee, the risk might not be materially higher than that posed by other workers who have been to supermarkets, go to a football match, etc.

In the second scenario, it is unlikely that an employer will have a legitimate basis to direct an employee to stay away from work without pay. If the employer is directing the employee to remain away from work, the employer will need to pay the employee for the relevant period.

In the first scenario, a level of debate is likely to arise. Provided the employer can demonstrate the relevant employee poses a sufficiently material risk to health and safety that cannot be mitigated, there is a reasonable basis for the employer to contend that the employee must stay away from work on unpaid leave (or annual leave if requested) until such time as the material risk dissipates (according to current Australian Government advice, this is likely to be a period of 14 days from possible exposure). This is because the employee is unable to work without posing unacceptable risks to health and safety.

What about Casual employees?

Casual employees are not entitled to sick leave. This means that a casual employee who is diagnosed with COVID-19 may be required to refrain from presenting to work without additional payments.

Also, where shifts to casual employees are reduced either on account of a business downturn or because the employee has been required to isolate (due to contact or recent travel), the employees will not be entitled to payment during this period.

Business Shut Down

A business is able to stand down workers in the event that an employee cannot do useful work due to:

  • equipment breaks down if the employer isn’t responsible for it
  • industrial action, when it’s not organised by the employer
  • stoppage of work for which the employer can’t be held responsible, including severe and inclement weather or natural disasters.

If your business needs to shut down due to a quarantine directive from a government authority, we believe that stand down provisions will apply.

For more information, go to the Fairwork website.

Key Take Away’s

We recommend that all businesses consider the potential effects of COVID-19 on their business and how they will manage these situations.

Ensure that all decisions are made on a case by case basis, taking into consideration the latest government advice.

    • Practice preventative measures
    • Understand your employer obligations regarding leave, shut down etc
    • Consistently provide up to date communication with your employees
    • Contemplate what business needs may arise from increased absenteeism, and how to manage this.

Please do not hesitate to reach out to a member of the Strawberry Seed team for advice specific for your business or employee situation. We can be contacted on (03) 4216 5200 or info@strawberryseed.com.au.

Where do I find more information?

If you are concerned about any issues regarding the Coronavirus (COVID-19), you should always follow the guidelines from both state and federal government organisations. You may also look to your industry body for advice specific to your industry.

Please note that advice on this situation is changing every day. We have included below links to several resources that may be useful.

Australian Department of Health https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert
Fair Work https://www.fairwork.gov.au/about-us/news-and-media-releases/website-news/coronavirus-and-australian-workplace-laws
WorkSafe https://content.api.worksafe.vic.gov.au/sites/default/files/2020-02/ISBN-Preparing-pandemic-guide-employers-2020-02.pdf
Victoria https://www.dhhs.vic.gov.au/coronavirus
NSW https://www.health.nsw.gov.au/Infectious/diseases/Pages/coronavirus.aspx
QLD https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/diseases-infection/diseases/coronavirus
SA https://www.sa.gov.au/topics/emergencies-and-safety/types/human-disease
WA https://www.wa.gov.au/government/coronavirus-covid-19
NT https://health.nt.gov.au/health-alerts/novel-coronavirus-covid-19
ACT https://www.health.act.gov.au/public-health-alert/updated-information-about-covid-19
TAS https://www.dhhs.tas.gov.au/publichealth/communicable_diseases_prevention_unit/infectious_diseases/coronavirus

Information compiled from a number of sources including government websites and the Australian Business Lawyers & Advisors. Always seek specific advice on the circumstances for your business.

Carli Saw

Author Carli Saw

Carli is a Human Resources professional with more than 20 years of experience across a range of industries and a passion for supporting small business.

More posts by Carli Saw

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