Keeping workplace directives lawful and reasonable are key to navigating employment issues relating to COVID-19.
Consultation with workers is paramount, those who attended our first major webinar of the year, Working with COVID: Key IR issues for 2022, heard last week.
And it is important to remember that Work Health Safety (WHS) and Workers’ Compensation laws apply even when employees work from home.
Stephen Smith, Head, National Workplace Relations Policy of Ai Group and Katie Hossain, Workplace Relations Adviser of Ai Group, said the top COVID IR issues affecting businesses include:
“The ‘lawful and reasonable’ direction issue has relevance to vaccinations, Rapid Antigen Tests (RATs) and working from home arrangements” Mr Smith said.
“Is it reasonable for an employer to direct an employee who works permanently at home to be vaccinated?” That probably wouldn’t be reasonable, but it may well be reasonable to direct an employee to be vaccinated if they are working in a workplace in close proximity to others.”
Employers must continue to assess WHS risks in the workplace and control them through ‘reasonably practicable’ measures which could, depending upon the circumstances, include mandating vaccinations and/or using RATs. Employers needs to carry out a risk assessment and determine what controls need to be implemented to protect the WHS of employees.
Businesses must give workers the chance to contribute to decisions that impact upon their safety.
Here are some frequently asked questions received by the Ai Group Workplace Advice Line.
If an employee is required by a PHO to be vaccinated to do their job, does the employer need to pay the employee if the employee is not vaccinated?
“In order for an employee to be entitled to be paid, unless they are on paid leave or working from home, they need to be ‘ready, willing and able’ to work,” Mr Smith said.
“In these circumstances, it is the Government directing them to stay away from the workplace and they are not entitled to be paid."
What can an employer do if an employee fails to comply with a PHO or a company direction to be vaccinated?
“This is a very common issue,” Mr Smith said.
“A lot of employers have a small number of unvaccinated employees either on paid or unpaid leave and they haven’t yet terminated their employment.
“If an employer is going to terminate the employment of someone who is refusing to be vaccinated in circumstances where there is a lawful and reasonable direction in place or a PHO requires it, there needs to be a valid reason for the termination and the employer needs to afford procedural fairness to the employee.
“Give them the opportunity to raise the reasons why they are not being vaccinated. Make sure you have considered fully any issues they want to raise about medical or other issues”.
Under the Privacy Act 1988, can an employer ask an employee for proof of vaccination status?
Collecting information must be reasonably necessary for business functions or activities.
“An employer is only able to collect and store vaccination status information if an employee consents, except where a relevant exemption applies. One exception is where the collection is required or authorised by law (eg through a PHO),” Mr Smith said.
When asking for an employee’s consent to collect their vaccination status information, employers must advise how the information will be handled and whether the information will be disclosed to anyone else.
Reasonable steps need to be taken to keep the information secure and the information should only be accessible to a limited number of people who need to know.
“It should be carefully secured because it’s health information,” Mr Smith added.
Are employers required to use RAT?
“In most cases, the use of RAT would not be required because there are other more or equally effective controls, such as vaccination, that can be implemented,” Mr Smith said.
“If a PHO requires the use of RAT for workers, then, of course, the PHO must be complied with.”
Can an employer direct an employee to use a RAT?
Any direction needs to be lawful and reasonable. Unions and employees have typically been supportive of RAT and, therefore, few problems have arisen with refusal. The biggest problem has been a shortage of supply.
If an employer is considering using RAT, what steps need to be taken?
Under WHS laws, businesses must consult employees and involve them in the decision.
RAT must comply with TGA requirements and guidelines. See: https://www.tga.gov.au/covid-19-tests
“Regardless of the type of test, you need effective systems about how you are going to record the tests and how the tests are going to be administered,” Mr Smith said.
“There are requirements in place at the state level through PHOs for the results of those tests, if positive, to be notified to the relevant authority.”
What are the entitlements of an employee required to self-isolate because they are infected with COVID-19?
“This was a huge issue over the Christmas-New Year period,” Mr Smith said.
Such employees are entitled to take any accrued personal/carer’s leave, even if they are asymptomatic. There are also unpaid pandemic leave entitlements in most awards. An employee who is allowed to work from home is entitled to be paid.
What are the entitlements of an employee required to self-isolate because they are a close contact of a person infected with COVID-19?
In this situation, an employee is not entitled to take accrued personal/carer’s leave unless they are providing care or support to a member of the employee’s immediate family/ household who is ill. If the employee cannot work from home, they are not entitled to payment unless they use paid leave entitlements (e.g. paid annual leave or long service leave).
What are the entitlements of an employee who becomes infected with COVID-19 (or who provides care and support to a member of the employee’s immediate family or household who is infected with COVID-19), during a period of annual leave?
“The Fair Work Act is clear on this,” Mr Smith says.
“Subject to notice and evidence requirements, the employee is entitled to take any accrued personal/carer’s leave and to have annual leave re-credited.”
What do employers need to consider with staff working from home?
“It’s important to think about the rights and duties of employers and employees regarding working from home arrangements,” Mr Smith said.
“A lot of people have been working from home for a lengthy period. However, in many cases, employers want to achieve a return to workplaces, often in a hybrid mode or in some cases, a complete return. If you are in this situation, it is best to consult with employees and endeavour to reach agreement on working arrangements.
“What we’re finding is that most employers with work from home policies had policies that were written years ago before the pandemic. It’s a good idea to have a look at those and update them in the current circumstances. You need to make sure you have systems in place to check that people are working safely at home.”
For further information, please call our Workplace Advice Line on 1300 55 66 77.
Click here for our latest COVID-19 updates and advice: https://www.aigroup.com.au/services-and-advice/covid-19/
The webinar was provided with the support of the Commonwealth Government, represented by the FWO.
Wendy Larter is Communications Manager at the Australian Industry Group. She has more than 20 years’ experience as a reporter, features writer, contributor and sub-editor for newspapers and magazines including The Courier-Mail in Brisbane and Metro, the News of the World, The Times and Elle in the UK.
