The Department of Health has issued a requirement for individuals
to isolate themselves in certain circumstances to help mitigate the
spread and risk of the coronavirus outbreak. Managing employees who are
potentially at risk of transmitting the virus is an important health
and safety obligation for employers.
The Department of Health is continuously providing updates to its information about – and requirements for management of the recent coronavirus outbreaks. For example, at the time of writing, the Department of Health stated that individuals must isolate themselves for 14 days if:1
- they had travelled from Hubei Province, China, within previous last 14 days;
- they had left or transited through mainland China on or after 1 February 2020; or
- they had been in close contact with a confirmed case of coronavirus.
We recommend that employers frequently check the Department of Health’s website for updates.
Employers have been asking EMA Consulting about their obligations for employees who have recently travelled in these areas, or other areas where the virus is known to have spread.
If an employee is required to isolate themselves, because of the Department of Health’s published directions, that employee is arguably not ready and able to perform work. In these circumstances, employers may be able to cease payment of wages until the employee is ready and able to perform work. Employers must check the relevant contracts of employment, enterprise agreements, modern awards, and policies and procedures for any provisions that may still require continued payment during the period of isolation. Otherwise, employees may be entitled to access paid leave, depending on the above instruments and the particular circumstances.
In some cases, due to an employee’s recent travels, employers may wish to direct employees to stay home for 14 days as a precaution, even though the employee is not required by the Department of Health to be isolated. An employer wishing to direct an employee to remain home for any reasonable period after travelling as a precautionary measure will likely be required to continue paying ordinary wages to the employee, without deduction of leave. As above, this will be subject to the specific terms in the employee’s contract of employment and any applicable industrial instrument.
Employers may wish to direct their employees to get medical clearance to return to work. If an employee is declared by a doctor to be medically unfit (for example, the employee has contracted the coronavirus), their absence from work will then be required and should be handled in the same way as any other instance of an employee being unfit to attend for work due to illness.
Duty of Care
Employers must, when making any decision, consider the various duties of care they owe. Employers must consider their workplace health and safety obligations, but also their duty of care to any clients, customers, or the general public, depending on the nature of their business. Employers wishing to know what reasonable steps they can take to ensure they are meeting their required standard of care should seek advice from an appropriate specialist. As previously stated, employers must also have regard to the relevant contracts of employment, industrial instruments, and employment policies.
In addition, employers must ensure that no employees are been discriminated against, including for reasons of possible contraction of the coronavirus or any other unlawful reason, such as race or ethnicity.
Require further information/assistance?
If you require further information or advice, please contact one of our consultants.
1 Department of Health, Novel Coronavirus (20190nCoV) Health Alert, 12 February 2020 <https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert>. See also Department of Health, Novel coronavirus (2019-nCoV), 12 February 2020 <https://www.health.gov.au/health-topics/novel-coronavirus-2019-ncov>.