Covid-19 - general guidance on how to minimise legal issues
Thursday, March 19, 2020
The coronavirus COVID-19 outbreak is causing particular concern to our small and medium enterprise clients. The risk of legal problems arising for business owners is significantly heightened at this time.
It must be kept in mind that in Australia, legislation dealing specifically with the spread novel diseases are almost unheard of. The law is generally not well equipped to deal with the ‘outbreak’ scenario unfolding at present. Notwithstanding, the same laws remain in effect. Consequently, COVID-19 cannot be relied upon as an excuse for breaking the law.
The purpose of this short, plain-English article is to provide general guidance on how to minimise the heightened risk of legal issues arising at this time.
Workplace health and safety
Businesses have legal obligations to ensure the health and safety of their workers, including contractors. A business must also ensure the health and safety of the broader public is not put in jeopardy through its conduct. This extends to taking reasonable measures to prevent the spread of illness and disease at a workplace.
The various state regulators do not appear to be shying away from taking enforcement action for WHS breaches. For example, the regulatory body in New South Wales has issued numerous WHS notices to a number businesses in relation to what it considered inadequate cleaning systems, said to expose workers and customers to risk of illnesses.
There are reports now of permanent staff who have no remaining sick leave available entering the workplace despite being sick in order to avoid taking annual leave or going unpaid.
In practical terms, we recommend keeping appraised of the most recent, credible medical information available and keeping in regular contact with staff and customers about your efforts to minimise the spread of the virus within your workplaces. Much of your WHS response will depend upon the specific nature of your workplace but universally we recommend employers limit staff’s interstate travel to only the most necessary of trips, consider mandatory quarantine periods for staff returning post-travel and as always, consider updating your all-important policy documents.
Employees are protected under various statutes against any form of direct and indirect discrimination on the basis of certain attributes. One of the protected attributes is impairment, another is family responsibilities.
Employers who terminate staff or offer reduced shifts on the basis of these protected attributes may run afoul of the anti-discrimination laws. Consider your policy documents and notices to staff carefully before taking these steps to ensure your actions are not unfairly labelled as unlawful discrimination.
As this depends heavily upon the individual circumstances of the case and the terms of the applicable Award we recommend contacting us before making decisions regarding how to pay employees for time spent sick, in quarantine or aiding a family member who fits either criteria.
Standing employees down
We do not recommend issuing stand down orders to employees. There has not been a Government directive to close workplaces as yet which makes the use of stand down provisions in the Fair Work Act particularly hazardous for employers.
Terminating staff is fraught with risk at the best of times. These are not the best of times however.
The level of media coverage has greatly increased sympathy for workers. Consider the damage which might be caused if your business was targeted online or in the media during this time by allegations of unfair treatment of workers.
We remind clients that the Awards, National Employment Standards, Fair Work Act, General Protections and common employment laws all still apply. As at the time of writing, none of the requirements of these instruments have been varied or set aside in the wake of the outbreak.
In response, we recommend reviewing your internal policies and considering carefully the information (particularly notices) given to staff in relation to their employment during this time.
Depending upon how your industry and business are affected (which may change over the course of the coming weeks and months), we urge clients to consider that it may be financially difficult for them to fund the defence of legal proceedings instituted by former staff at this time.
Bennett Carroll is continuing uninterrupted service to all of its clients (including but not limited to telephone appointments) as the epidemic and the legal problems arising from it run their natural course.