Working with COVID: an employer’s guide

One of the realities of ‘living with COVID’ is that it’s always a possibility that we’ll be infected. In fact, at the time of writing, around 1% of the Australian population is estimated to have an active case of COVID, and – at times – this number is estimated to have been double that amount. That means your workplace is likely to face a situation where some of your team members are out of action and unable to work because of the illness.

So what are your obligations to employees affected by COVID and what rights do they have when it comes to continuing to work? We explore.

Health and safety is paramount

It should go without saying that when an employee test positive for COVID, you can’t expect them to attend work. Everyone must isolate for at least seven days and can only leave home for medical care or in an emergency. So they can’t legally attend the workplace.

But the sick employee isn‘t the only one with obligations in this situation. As the employer, you have workplace health and safety (WHS) obligations too, including the obligation to provide a safe workplace. That means preventing the risk of COVID from spreading to other employees. 

You should carry out a risk assessment, speak with affected employees and take steps to reduce the risk of the virus spreading. For instance, you could direct close contacts to work from home, where possible. 

Do you need to pay the employee?

There’s actually no general obligation to pay an employee who’s required to self-isolate due to COVID. However, some enterprise agreements, workplace policies or employment contracts may require you to do so. 

A permanent employee suffering from COVID can use their paid or unpaid sick leave entitlement, or if they’ve used this all up, they can take paid or unpaid annual leave. 

When an employee is absent from work because they’re caring for someone suffering from COVID, they can use their carer’s leave entitlements, both paid or unpaid. They can also use their annual leave, and you can’t refuse any reasonable employee request to use it.

The Commonwealth government has also introduced a scheme to pay workers who aren’t receiving an income due to COVID. The Pandemic Leave Disaster Payment offers a lump sum payment for every seven days of isolation spent with COVID or caring for someone with COVID, including:

• $450 if you lost at least 8 hours or a full day’s work, and less than 20 hours of work
• $750 if you lost 20 hours or more of work.

When should the employee come back to work?

The employee can generally return to work once they’re COVID-free and their isolation period has ended. 

If you’re worried about an employee coming back to the workplace, you can generally direct them to remain at home. However, you’ll need to pay them, even if they can’t work remotely.

You also need to make sure you’re not unlawfully discriminating against them. This can be a grey area, so speak with your legal or HR adviser if you’re in any doubt.

Can you make others attend the workplace?

It’s likely that if someone in your workplace has COVID, others may be hesitant about coming to work. 

Employees have the right not to attend work if they’re likely to be exposed to a serious and immediate hazard. So, it’s incumbent on you to make sure you do everything practical to reduce the risk of infection. 

You also have to consider any requests to work flexibly and in some cases – such as when it’s genuinely safer for them to work from home – you may have to allow their requests. However, if you have reasonable grounds to deny the request – such as having a genuine need for the employee to attend the workplace and having taken all reasonably practical steps to make the workplace safe – you can legitimately refuse it.

Want more?

When one of your employees has COVID, it has genuine ramifications for your workplace and your workers. You should always speak with your legal or HR adviser about what steps you need to take. 

Contact us now if you’d like to know more.