The spread of the coronavirus is an unprecedented event and one that requires employers to carefully consider their legal obligations in relation to the various issues it raises in the workplace.
Whilst the Fair Work Act is the starting point for minimum employee entitlements, employers also need to consider their obligations under any applicable enterprise agreement, award or employment contracts.
Full-time and part-time employees who cannot come to work because they are sick with coronavirus, or need to look after a family member or a member of their household who is sick with coronavirus, are entitled to paid personal/carer’s leave.
The current self-isolation guidelines are likely to create circumstances where an employee is unable to attend work but is not sick. Employees are only entitled to be paid sick leave if they cannot attend work due to illness or injury. If an employee is not sick, they are not entitled to paid sick leave. In this situation it may be that employers may be able to enable the employee to continue working by working from home. If this is not possible the employee may have other leave entitlements they can take. Whilst the Fair Work Act does not provide for paid leave in these circumstances, employers and employees are of course able to reach an agreement as to payment or other management of the absence.
If a full-time or part-time employee is ready, willing and able to work and an employer directs that employee to stay home due to workplace health and safety risks, the employee should be paid while the direction applies.
If an employee chooses to stay home as a precaution they will need to come to an arrangement with their employer, such as making a request to work from home or to take some form of paid or unpaid leave, such as annual leave or long service leave.
Casual employees do not have paid sick or carer’s leave entitlements under the Fair Work Act and are usually not entitled to be paid when they do not work. Employers will again need to consider their obligations under any applicable enterprise agreement, award or employment contract that may alter this entitlement.
Under the Fair Work Act, employees are protected from being dismissed because of a temporary absence due to illness or injury. Some employers however may need to make employee’s positions redundant in response to a business downturn. In this situation, employees will be entitled to redundancy entitlements as provided for in the Fair Work Act or any applicable enterprise agreement or award.
Should you require any assistance with any employment issues in your workplace we recommend seeking advice to ensure compliance with your obligations under the Fair Work Act.
This article was co-written by Employment Lawyer, Emma Sheen.