Employment Law Update

The inevitable arrival of the coronavirus at your workplace

3 March 2020

The issue

The current outbreak of the coronavirus disease (COVID-19) was first reported from Wuhan, China, on 31 December 2019.  Since that time, the virus has inexorably worked its way around the world, including arriving in Australia, infecting more than 89,000 people and killing more than 3,000 people.  The vast majority of cases are in China, but the virus has spread to more than 75 other countries.  It will shortly be formally identified as a pandemic, but this label matters little to those who are exposed to the threat of infection.

The processes implemented by countries, including China in particular, to shut down known hot spots for the virus in an attempt to stop the spread of the virus have not worked, although they may have slowed the initial rate of spread of the virus.

However, the inevitable reality is that COVID-19 will affect the majority of Australian workplaces, and this is likely to happen quickly once the defensive tactics adopted by the government to keep the virus out of Australia have failed or been breached.  As a result, it is important for employers to understand what they can, and must, do in response.

What is COVID-19?

Coronaviruses are a large family of viruses which may cause illness in animals or humans.  COVID-19 is the infectious disease caused by the most recently discovered coronavirus.  While animals are the source of the COVID-19, this virus is now spreading from one person to another, in what is known as person-to-person transmission.

COVID-19 is spread through small droplets from the nose or mouth when a person with COVID-19 coughs or exhales either being inhaled by another person or landing on objects and surfaces which are then touched by another who then touches their eyes, nose or mouth.  Studies to date suggest that the virus that causes COVID-19 is mainly transmitted through contact with respiratory droplets rather than through the air.  Professor Collignon, an infectious diseases physician at Canberra Hospital, has told ABC News that “It appears that about 2 per cent of people that have had close contact [with an infected individual] may acquire the virus.”

The most common symptoms of COVID-19 are fever, tiredness, dry cough and breathing difficulties.  Some patients may have aches and pains, nasal congestion, runny nose, sore throat or diarrhea. In severe cases, there can be organ failure.  Antibiotics do not work against the virus because it is not caused by a bacterial infection, and the antiviral drugs that are used against the flu will not work against COVID-19.  

Most people (about 80%) recover from the disease without needing special treatment.  Around 1 out of every 6 people who gets COVID-19 becomes seriously ill and develops difficulty breathing.  Generally, elderly people and those with underlying conditions (e.g. hypertension, heart disorders, diabetes, liver disorders, and respiratory disease) are more at risk of developing severe symptoms.  About 2% of people with the disease have died.

Why is this relevant to an employer?

The first cases of person-to-person transmission of COVID-19 have been confirmed in Australia today by the NSW Health Minister Brad Hazzard. 

If the possibility of transmission of COVID-19 becoming widespread in Australia eventuates, any workplace that has more than one employee is at risk.  This is particularly important as it is not certain how long the virus can survive on surfaces, but studies suggest it may persist for a few hours up to several days depending on the conditions.

This is relevant to an employer as, for example, under work health and safety laws in NSW, a person conducting a business or undertaking (such as an employer) must ensure, so far as is reasonably practicable, the health and safety of:

  • workers engaged, or caused to be engaged by the person; and
  • workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking. 

Managing the risk

Options that an employer may consider to manage this risk include:

  1. Directing employees to remain at home for at least 14 days if they have returned from an affected country.
  2. Reminding employees to take care from themselves and others within the workplace. This could include:
  • avoiding or limiting physical gatherings of employees in one location;
  • avoiding physical contact between employees (e.g. forgoing handshakes);
  • employees immediately isolating themselves if they feel unwell with any of the symptoms of COVID-19;
  • washing and/or disinfecting hands on a regular basis;
  • maintaining a safe distance from anyone who is coughing or sneezing;
  • only flushing toilets with the lid down (to prevent the flushing water from spreading microscopic parts);
  • cleaning / disinfecting touchscreens, laptops, phones etc. that are used by more than one person;
  • face masks and other available items to limit the passing of the virus;
  • where possible limiting travel to affected countries.
  1. Facilitating full-time and part-time employees to take paid personal leave (i.e. both sick and carer’s leave) subject to complying with the notice and evidentiary requirements, and unpaid carer’s leave (for casuals) and full-time and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left;
  2. Allowing employees to work remotely (e.g. from home);
  3. Directing employees to work remotely, noting that such a direction would usually require the employer to pay the employee for the period of remote work; and
  4. Standing down employees, without pay. Under the Fair Work Act 2009 (Cth), an employee can only be stood down without pay if they cannot do useful work because of equipment break down, industrial action or a stoppage of work for which the employer can’t be held responsible.  The most common scenarios are severe and inclement weather or natural disasters, and arguably COVID-19 is a significant disaster affecting the whole world.  Enterprise agreements and employment contracts can have different or extra rules about when an employer can stand down an employee without pay.

This list is not exhaustive.  For example, the list does not outline that an employer may need to close its business for a period of time given the impact of the virus on critical elements of the employer’s business, including its supply chain, workforce, customers etc.  However, the list is illustrative of the steps that an employer can now consider given the likely arrival of the virus at its workplace in the near future.

Guidance for Employers

It is important for employers to consider factors such as the likely impact of the virus on its workplace and what solutions can usefully and appropriately be adopted by the employer to manage these impacts.

As many commentators have already confirmed, viruses of this nature do not respect borders.  Nor will it respect even the best attempts to try and prevent it from reaching a workplace.  As such, employers need to start planning for the arrival of the virus here to allow it to be best placed to successfully address the issues that the virus will pose.

Employers also need be aware that some alarmists will use COVID-19 as an opportunity to strike fear and/or discrimination into our minds and our workplaces.  Employers should base decisions on information properly obtained (e.g. from the Australian Government, Department of Health website: https://www.health.gov.au/health-topics/novel-coronavirus-2019-ncov).  

The information about COVID-19 contained in this article has been gathered from the World Health Organization, NSW Health and ABC News websites.

For further information, please contact:

Seamus Burke | Director
Jess Phillips | Lawyer

This document contains information only and should not be relied upon by anyone as constituting legal or medical advice.