Navigating Your COVID Responsibilities as an Employer

Are you sure you’re up to date on your responsibilities as an employer to limit the spread of the COVID-19 virus in your workplace? In this, the third year of living with the pandemic, beware of what the World Health Organisation calls the ‘infodemic’ – an overwhelm of false and misleading information. 

We’ll aim to cut through this false news in this article by clarifying the main sticking points for businesses employing staff during this pandemic. 

Compulsory vaccinations for staff 

The FairWork Ombudsman says some employers can mandate vaccination if required under: 

  • A public health order or other specific law, or 

  • An enterprise agreement, other registered agreement, or employment contract. 

Employers can also give their staff a lawful and reasonable direction to vaccinate, but this may be assessed case-by-case. 

Considerations include workplace health and safety obligations, the nature of the workplace, and how available and effective other control measures are. Be mindful of how such directions interact with anti-discrimination laws. 

The ombudsman advises that employers seek legal advice on compulsory vaccinations. A recent South Australian judgement upheld mandatory vaccination as reasonable and lawful even in the absence and easing of government directions. 

Here’s more information about how you ask staff to show proof of their vaccination. To find out about your privacy obligations to your employees regarding COVID-19, check with the Office of the Australian Information Commissioner. 

Sick leave due to COVID 

As an employer, you’ll need to ensure the health and safety of your workers and other visitors to your workplace, which means COVID-19-positive staff can’t attend. You can direct such an employee to stay at home, but they’re not entitled to pay except if they’ve chosen to take paid sick or other paid leave. 

That’s important – employers can’t demand staff use their accumulated sick or carer’s leave. The FairWork rules protect temporarily ill workers from dismissal if they’re away for less than three months straight or that time in total over the past year as long as they’re still using their paid sick leave. 

You can learn more about your staff taking paid or unpaid carer’s leave due to the virus here. 

Making alternative work arrangements 

If your staff opt out of vaccination or can’t get the jab, but it’s mandated in your workplace, you’ll need to explore alternative work arrangements. This will also occur if staff have obligations to care for infected family members, so can’t come to work. 

Discuss with staff possible options for them to work from home safely. Be guided by rules in the relevant: 

  • Award 

  • Enterprise agreement 

  • Employment contract, or 

  • Workplace policies. 

However, remote work might not be practical, so check out what else you can do to ensure you maintain workplace health and safety. When recruiting staff, ensure their conditions of employment specifies where they can or will work. This recent case highlights why that’s important to deter possible future disputes. 

Risk management comes into play when you’re dealing with return to work en masse or for staff who’ve just recovered from the virus. Be sure to check the FairWork Ombudsman’s interactive tool for employers managing the return to the workplace. It covers workplace rights and responsibilities, and how to scale up and adapt your workplace during the pandemic. 

Managing the return to work involves: 

  • Transitioning staff back to your site, including lifting your standdown rules 

  • Adapting employees’ hours, duties, or worksite 

  • Rolling out alternative working options for your employees 

  • Ensuring you stay current regarding changes to workplace laws. 

Ensure your business insurance is up to date 

As an employer, you’re undoubtedly in the habit of reviewing your business and workers’ compensation insurance cover to ensure it suits your current circumstances. We’d encourage you to keep us updated on the working arrangements of your staff, particularly when there are changes in large numbers working remotely in contrast to pre-pandemic. Your insurance cover and premium may need tweaking to reflect that. 

If an employee contracts COVID-19 at work, they can claim on your workers’ compensation cover for medical expenses and lost income. Find out more from The Conversation about workers’ rights if they catch COVID-19 via your workplace. 

As for COVID-19’s impact on your operations, there’s still a question mark about whether this triggers business interruption cover. An appeal to be heard in the High Court should offer clarity, as this detailed update from the Insurance Council of Australia explains. 

You’d appreciate change is a constant feature of the pandemic, so we encourage you to proactively seek updates about your responsibilities as an employer. 

Safety & Wellbeing, Safety and WellbeingTerrence Ignaciohranywhere