Keeping workplaces safe in the shadow of COVID

The mandatory isolation requirements have been revoked following a federal cabinet meeting where the states and territories overwhelmingly agreed to scrap mandatory isolation requirements for covid positive individuals. The cost of covid-19 to small business has been significant with employees requiring to self-isolate for five days in NSW if they test positive. However, the stigma associated with covid-19 and illness in general remains heightened with some employers no doubt asking the question “can I still require employees to isolate if they have covid?” The financial and reputational costs of infection (or widespread reinfection) of a workplace and the potential for infection for vulnerable employees is a valid consideration for some employers.

Employers cannot force employees to take sick leave, however it is possible to justify a policy that requires employees to seek a medical certificate for ‘fitness for work’, opt to take sick leave or to work remotely or in isolation, if they are unwell. An infectious disease policy ideally should reference WHS obligations, namely the requirement that employers must eliminate or where this is not possible, minimise risks to any person’s health and safety. This duty extends to employees, customers or visitors to a business. Where a business is likely to interact with vulnerable individuals, a policy around infectious diseases and attendance at work may carry more weight.

Any policy in this regard would have to be flexible and ensure that any employees are not disadvantaged by having to take time off work or work remotely if unwell. This would mean ensuring access to appropriate leave or an ability to work remotely or in isolation. Any policy that forces leave or otherwise impacts an employee’s workplace right, may trigger general protections claim under the Fair Work Act 2009 (Cth). In short, this should be drafted carefully.

We recommend that directives around infectious disease be encapsulated in an employment policy rather than an employment agreement to ensure that directives can easily change in accordance with societal expectations and the ongoing evolving nature of covid. Accordingly, an employment agreement or variation should reflect that employees must abide by a business’s employment policies to be effective. If you would like to discuss employment policies or the effectiveness of your employment agreements, we would be happy to assist.