COVID-19: Workplace legislative requirements

With the increasing concerns surrounding novel coronavirus (COVID-19), it’s important that employers are aware of their obligations around staffing arrangements and leave entitlements.

AMA Queensland has included below some information covering your most frequently asked questions:

Where can I get information on health and safety in the workplace?

Work Health and Safety (WH&S) laws require that an employer ensures, so far as is reasonably practicable, the health and safety of their workers and others in the workplace. This includes providing and maintaining a work environment that is without risk to health and safety.

As an employer, you have an obligation to identify potential risks in the workplace, and do what is reasonably practicable to eliminate those risks, or where this is not reasonably practicable, to minimise those risks.

Some employers have decided to offer working from home arrangements, or where this is not possible, implement other preventative measures such as social distancing, delaying non-essential tasks, contacting patients prior to attending the Practice to notify them of preventative measures to take, and more. If working from home arrangements are offered, it’s important to remember that your WH&S obligations still apply and you may consider contacting your Medical Defence Organisation for advice if staff will have access to confidential information such as patient records.

Resources:

It’s crucial that you remain up to date with the latest COVID-19 information and advice to ensure that any action taken is appropriate. We’ve listed some useful websites below:

• The Australian Government Department of Health
• Australian Medical Association
• Queensland Health
• Safe Work Australia
• Fair Work Ombudsman
• Smartraveller website
• WorkCover Queensland

What happens if an employee or a member of their family is sick with COVID-19?

Employers can direct an employee who is sick with COVID-19 to stay home from work and obtain a medical clearance from a doctor before returning to work. This can only be done if you are acting reasonably and that the action is based on factual information about health and safety risks, such as the Australian Government’s health and quarantine guidelines.

For your full-time or part-time employees, they are able to access their paid personal leave entitlements if they are sick with COVID-19. If a member of the employee’s immediate family or household is suffering from an illness such as COVID-19, or an unexpected emergency, they can access their paid carer’s leave entitlement to provide care or support.

Under the Fair Work Act (2009) casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Similarly, full-time and part-time employees can take unpaid carer’s leave if they don’t have any accrued paid personal/carer’s leave left.

An employer is still able to request evidence of the illness or unexpected emergency in this circumstance.

What if an employee is stuck overseas or is required to self-isolate?

Unfortunately, the Fair Work Act (2009) does not provide specific rules for this scenario, and it is a situation where the employer and employee must negotiate their own arrangement that best suits. Some options might include:

• Working from home if this is feasible
• Taking sick leave if the employee is sick
• Taking annual leave
• Taking any other leave available to them (such as Long Service Leave or accrued Time Off in Lieu of Overtime)
• Some Practices have also offered to pay staff

Where you are directing a full-time or part-time employee to stay home, and the employee is not sick with COVID-19, the employee should ordinarily be paid while the direction applies.

If an employee is stuck overseas as a result of travel restrictions, they are not entitled to be paid. This is another scenario where employer’s may offer alternative arrangements such as working remotely or allowing an employee to access their annual leave.

What if you want to close the Practice as a precaution?

If the employer is making a direction for full-time or part-time employees to stay home as a pre-cautionary measure (the employee is not sick with COVID-19), and they are ready, willing and able to work, the employee is generally entitled to be paid while the direction applies.

Under Section 524 of the Fair Work Act (2009), an employee can only be stood down without pay if they cannot be usefully employed because of one of the following circumstances:

• Industrial action;
• A breakdown of machinery of equipment, if the employer cannot reasonably be held responsible for the breakdown; or
• A stoppage of work for any cause for which the employer cannot reasonably be held responsible.

The most common scenarios for when an employer might stand down employees are severe and inclement weather or natural disasters. Standing down employees without pay is not generally available due to a deterioration of business conditions or because an employee has COVID-19.

If an employee has requested to stay home as a precautionary measure, they need to discuss this with their employer to come to an arrangement which best suits the workplace.

Options, again, might include the employee taking a period of annual leave or long service leave, or working from home, if this is available.

Are casual employees entitled to be paid?

Under the National Employment Standards, casual employees do not have paid personal/carer’s leave entitlements and are usually not paid when they do not work. This includes if they are suffering from COVID-19 or required to self-isolate. Casual employees receive a 25% loading instead of paid leave entitlements.

However, they do have some unpaid leave entitlements, such as unpaid carer’s leave.

What am I entitled to under the Government stimulus package?

The Australian Government has introduced a number of stimulus assistance for businesses which may help your practice through this uncertain time. Eligible small to medium businesses with a turnover of less than $50million that employ staff could receive up to $25,000 available tax free.

Our corporate partner, William Buck, has provided the following link to update you on the support provided: click here

We recommend that you speak with your accountant or tax advisor for further information on how you can utilise the stimulus assistance.

Advocacy from AMA Queensland

AMA Queensland is seeking a relaxation of the Long Service Leave (LSL) regulations to provide options for employers who have staff without any annual leave or other leave they would be able to draw upon if required to self-isolate.

At the moment, employees can only ‘cash out’ their LSL under the Industrial Relations Act 2016 (Qld) if:

• The applicable Award, enterprise agreement or certified agreement allows for cashing-out; or
• The employee makes an application (Form 13) to the QIRC for an order.

These applications may only be made for compassionate reasons or on the grounds of financial hardship and can only be made once the employee has qualified for a leave entitlement.

Further to this, the Health Professionals and Support Services Award and the Nurses Award do not contain provisions which allow the cashing out of LSL.

An employee is only eligible to take LSL in Queensland at 10 years, and again at 15 years of continuous service. There are some provisions which allow for an employee to access their LSL at 7 years, but this is only on termination of employment and satisfying a certain criterion.

Further information

Daily updates and frontline advice on COVID-19 are available to all AMA Queensland members via Queensland Doctors' Community (QDC): https://community.amaq.com.au/home

If you have any questions, please contact AMA Queensland via our dedicated COVID-19 email: covid19@amaq.com.au or call us on (07) 3872 2222.