Coronavirus Quarantine – what leave entitlements apply?

How do you protect your organisation, and other staff, if one of your staff members gets sick with a virus, or wants to ‘self-isolate’ at home?

With the Australian Government advising individuals to self-isolate if they have travelled to places like China, South Korea and Iran to prevent the further spread of coronavirus (‘COVID-19’), what does this mean for an employee’s leave entitlements?

This  article covers the key things employers need to consider when determining what leave entitlements apply during self-isolation.

“My employee has or may have been in contact with the coronavirus.”

  • An employee who has or may have been in contact with the coronavirus should be encouraged to self-isolate for the period recommended by health authorities.
  • The Fair Work Act 2009 (Cth) (“FW Act”) does not have specific rules for this kind of situation so you will need to come to your own arrangement with your employee.
  • This may include having the employee work from home (with a medical clearance from a doctor) or being directed to take personal leave.

What if working from home isn’t an option and the employee has exhausted their personal leave?”

  • You could discuss taking unpaid personal leave, annual leave or another type of leave that may be available to them (e.g. long service leave).
  • You may also grant access to annual leave in advance (i.e. allow the employee’s leave balance to ‘go into negative’ and take paid leave before it is accrued).
  • However, unless expressly provided for in an employment contract or EBA, an employer cannot force an employee to take annual leave. The purpose of annual leave is to ensure employees have rest and recreation – not to cover situations where an employer is requiring an employee to stay at home or the employee may not be fit or safe to be at work around other co-workers.
  • Also, offering unpaid leave for the isolation period may be a disincentive to self-isolate where an employee cannot afford to go unpaid for two weeks. This could, in turn, incentivise employees not being ‘upfront’ and honest about where they have travelled or if they feel they may be infected.

“I suspect my employee has or may have been in contact with coronavirus, but is refusing to self-isolate.”

  • As an employer, you have a legal obligation to provide a safe working environment for your clients, customers, patients, visitors, staff and/or contractors.
  • Accordingly, where you are aware an employee has or may have been in contact with the coronavirus, you may direct them to stay away from work for the risk period recommended by health authorities.
  • Given it is you who is trying to mitigate your liability, it is likely you will need to foot the bill for this.
  • Generally, where an employer directs a full-time or part-time employee not to work, the employee would be entitled to be paid while subject to that direction. Whilst there are calls for government to make a fund available to employees who need to self-isolate, this has not happened to date.
  • Under the  FW Act, an employee can only be stood down without pay if they can’t do useful work because of equipment break down, industrial action or a stoppage of work for which the employer can’t be held responsible. This usually applies to severe and inclement weather or natural disasters.
  • You will also need to check any obligations which might apply in your EBA, modern award, contracts of employment and workplace policies, and balance all of your obligations carefully – this includes your anti-discrimination obligations.
  • Some employers, like the NSW Government, are granting special leave to those instructed to self-isolate. This leave will be paid leave and not linked to annual leave.

We work in a high-risk workplace. What should we do?”

  • High-risk workplaces such as aged care facilities or medical providers will have to balance all of the above with the reality that they work with people who are more vulnerable to the virus like the elderly or people who are already sick.
  • You want to remove as many barriers as possible for people who have been or may have been in contact with the coronavirus to stay away from home.
  • You may also need to introduce stricter policies and processes to manage the risk of exposure to coronavirus in your workplace.

Proactive measures to reduce the spread of coronavirus at work

  • Some companies are rolling out more flexible working from home options (where possible) to reduce the risk of exposing staff to coronavirus at work.
  • Some are also placing restrictions on non-essential travel, and are requiring employees to self-isolate if they have travelled to/through countries identified by the Federal Government’s Smart Traveller as ‘do not travel’ or ‘exercise a high degree of caution’.

Need Specialist Help?  

Workplace Wizards can assist you navigate this minefield. Our experts regularly advise on situations such as this to balance organisational risks, costs and manage specific employee situations, tailoring our solutions to your particular problem.

Call Mark on 0458 644 469, or email mark@workplacewizards.com.au for your free, no-obligation 20 minute consultation on how we can assist you tackle these thorny employee and organisational issues.

  • An employee who has or may have been in contact with the coronavirus should be encouraged to self-isolate for the period recommended by health authorities.
  • The Fair Work Act 2009 (Cth) (“FW Act”) does not have specific rules for this kind of situation so you will need to come to your own arrangement with your employee.
  • This may include having the employee work from home (with a medical clearance from a doctor) or being directed to take personal leave.
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Mark Ritchie

Mark Ritchie

Mark is passionate about helping Australian businesses efficiently resolve their industrial relations issues. Mark has demonstrated proficiency advising managers, executives and boards of small to medium-sized enterprises, as well as some of Australia’s best-known companies, on both litigious and non-litigious matters.

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