The rapidly evolving COVID-19 pandemic is creating unprecedented legal and business challenges. Our experts address questions we’ve been receiving from our clients.
If you are concerned about an employee’s health because they are presenting as unwell and they refuse to take personal leave, it is appropriate to request they provide a medical clearance before returning to work.
However, I acknowledge that in these challenging times, that may be more difficult than in the ordinary course.
You are correct that the RACGP has recommended that employers reconsider the need for requesting Medical Clearance/ Certificates as these requests may increase unnecessary presentations to general practices and contribute to overburden of essential health care services. The RACGP recommendation against requesting a medical clearance is focused on individuals who are required to self-isolate because of travel or who appear well but have been in contact with a positive COVID-19 case.
The stand down provisions of the Fair Work Act 2009 (Cth) (FW Act) provide that an employer is able to stand down an employee without pay during a period in which the employee cannot usefully be employed for reasons including that there is a stoppage of work for any cause for which the employer cannot reasonably be held responsible. Whether a site closure as a result of a confirmed case of COVID-19 qualifies as a cause for which the employer cannot reasonably be held responsible is highly dependent on the particular factual circumstances of each case. The Fair Work Ombudsman (FWO) advises that in order to validly stand down an employee the employer must be able to demonstrate that:
- there is a stoppage of work;
- the employee to be stood down cannot be usefully employed (which is not limited to the work the employee usually performs); and
- the cause of the stoppage must be one that the employer cannot reasonably be held responsible for.
The FWO has stated that while employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus, employers may be able to stand down employees in situations including but not limited to:
- where there is an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location);
- where a large proportion of the workforce is required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed; and
- if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.
It will be particularly important to keep updated on the Government directions being made in response to the COVID-19 pandemic in light of its continually evolving nature to determine whether a stand down of employees can be made in line with an enforceable direction.
Employees who want to stay at home as a precaution, and not as a consequence of a direction made by government or their employer are not entitled to payment without accessing their leave entitlements. Employees who don't work because they have a reasonable concern about an imminent risk to their health or safety are not taking industrial action, provided the employee complies with a direction to perform other appropriate and safe work.
Standing down employees should be considered a last resort after all alternative measures are considered.
If standing down employees is the only option, then it will be important for an employer to take the following steps when seeking to stand down employees, noting that the specific steps to be taken will be highly dependent upon the particular circumstances of the employer:
- employers should provide employees with a letter confirming that they have been stood down without pay;
- a dialogue should be entered into with employees to discuss their leave entitlements if the employer is financially able to make those payments;
- employers should direct affected employees to the Service Australia website which provides details of the welfare payments which will be available for eligible permanent and casual staff during periods of stand down; and
- employee assistance programs should continue to be available and affected employees should be reminded of their continuing operation.