During the COVID-19 pandemic in Australia, many Government issued public health orders mandated that persons who had contracted and / or were exposed to COVID-19 were to self-isolate for a period of time.
From 14 October 2022, the mandatory self-isolation rules for persons who test positive to COVID-19 were removed following the decision by the National Cabinet.
As Australian workplaces move from remote working to now returning to the office with no isolation periods for COVID-19 positive employees, we must turn our minds to what employers should consider in relation to now managing COVID-19 in the workplace.
Work health and safety
Employers are still obliged under work health and safety legislation to ensure the safety of workers and others in the workplace – this includes managing the risk of exposure to or transmission of COVID-19 in the workplace.
The risk management process requires employers to conduct risk assessments and to implement control measures to eliminate or minimise the risks. This means that while employees are no longer required by public health orders to self-isolate, employers may still require employees to stay at home if they test positive to COVID-19.
If there is a proposed change in any workplace work health safety policy, employers should consult with employees.
From public health requirement to personal responsibility
For many employers, the change in approach to the management of COVID-19 by public health authorities may mean that policies need to be adjusted to deal with COVID-19 in the same way as other highly transmissible illnesses – think your common cold or flu. This might lead to shift to a more general workplace health and wellbeing policy.
A general health and wellbeing policy will be centred on employees exercising personal responsibility by taking care of themselves and others in the workplace. Where an employee is sick or unwell, they should be encouraged to stay home and rest so they can recover and be fit to return to work. Employees staying home when they are unwell or are experiencing symptoms of cold or flu will also assist in ensuring that they do not pass on any illness to others in the workplace.
As COVID-19 symptoms are similar to that of the common cold, employers should encourage employees to undertake a polymerase chain reaction (PCR) test or a rapid antigen test (RAT) and stay at home if they either test positive to COVID-19, or are simply unwell.
Sick and carer’s leave
Under the National Employment Standards, employees have access to 10 days of paid sick and carer’s leave per year (pro-rata for part-time employees) in the event that they are ill or injured or are required to care for an immediate family or household member who is ill or injured.
In addition, all employees, including casual employees, have access to two days unpaid carer’s leave on each occasion they are required to care for an immediate family or household member who is ill or injured.
There is no legal obligation for employers to provide employees with unpaid leave if their sick leave is exhausted, however employers can agree to do so. Equally, employers should also consider what their position will be if an employee presents for work unwell but no longer has any paid sick leave accrued.
Return to work
The return to work from illness should also be managed carefully. Employers may wish to require employees to provide evidence that they are fit for work or are no longer suffering from their illness. For example, where an employee has reported that they tested positive for COVID-19, an employer may require an employee to show evidence of a negative PCR or RAT test. For other illnesses, a medical certificate may be sufficient.
While there is no minimum or maximum number of days required to be taken when accessing sick leave, individuals may be affected by illness (including COVID-19) differently, so employers should be mindful of this when managing workloads or rostering.
Different workplaces and indeed, different sections within workplaces may require different controls. For example, employees working in warehousing may still require strict COVID-19 management protocols where if an employee has tested positive to COVID-19, they may require a negative PCR test to return to work. However, employees working in an office and who can work from home may be able to return to work remotely even though they are only suffering from minor symptoms.
Case by case assessment
Individual circumstances may require individual consideration. For example, it may also be necessary for employers to consider how to manage circumstances where an employee reports that a member of their family or household is unwell from COVID-19 or other illness but the employee themselves is suffering no symptoms. The employer’s response may depend on the employee’s position, location of work and whether there is scope to work remotely.
As workplaces return to some pre-COVID-19 normality, there is no doubt that pandemic has caused a rethink in the ways of working. This rethink may also apply to managing sickness generally in the workplace in a more flexible way.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
