Navigating the COVID-19 risk for employers in a direction-less world

As Australia and the world more generally continues to adjust to living with COVID-19, businesses and employers find themselves increasingly required to implement business-wide policies and decisions in order to fill the gaps which were previously occupied by government enacted emergency directions and orders (Directions).

Although the Directions presented challenges for businesses in many respects, businesses were able to take some certainty and comfort in knowing that decisions regarding isolation, quarantine and close contact obligations were largely dictated by such Directions and that their hands were “tied” in respect of dealing with COVID-19 in the workplace. However, with the continued unwinding of the Directions, including the lifting of any legal requirement in South Australia to isolate at all when confirmed as COVID-19 positive, there is no doubt that the onus has shifted to employers to choose how to deal with COVID-19 in the workplace, and indicates that COVID-19 is now on its way to be treated the same as any other sickness or illness such as the flu or common cold.

Directions to not attend work

The change in government policy however does not take away from the fact that businesses and employers continue to owe work health and safety obligations as well as a duty of care to take reasonable steps to prevent an employee from contracting COVID-19 at work. Accordingly, in recognition of these risks, businesses are beginning to implement policies or workplace directions with the effect of preventing COVID-19 positive employees from attending the workplace.

While the purpose of such policies or directions is clear, it is imperative that employers give careful consideration to these actions, as they may face legal risks where these actions are considered harsh or unreasonable. In those circumstances there is a risk that these actions will not be considered a “lawful and reasonable direction”.

For example, while it may appear obvious to implement a policy requiring all COVID-19 positive employees to take sick leave and not attend the workplace, real issues relating to the lawfulness and reasonableness of such a term may arise where the employee refuses on the basis that they are completely asymptomatic and are ready, willing and able to work and therefore do not wish to utilise their accrued paid leave. In such circumstances, businesses may need to consider whether the employee is able to work remotely, or if that is not possible, conduct a risk assessment with respect to whether the employee is able to attend work with reasonable pre-cautions in place.

Return to the office

On the other hand, there is no doubt that remote working arrangements became the new ‘normal’ during COVID-19. With the easing of COVID-19 restrictions, some employers are looking to unwind work from home arrangements in order to return all employees to the office.

The starting position is that work from home is a privilege and not a workplace right. However, businesses should consider whether there is any requirement to offer remote working pursuant to its own policies and/or an employee’s specific employment contract. Similarly, certain categories of employees have a legal entitlement under the Fair Work Act 2009 (Cth) to request flexible working arrangements, which may include remote working. Where an employee is in one of those categories, employers have a legal obligation to provide a written response within 21 days of the request and can only refuse that request on reasonable business grounds.

In any event, it is likely that a direction from an employer to an employee to return to the office will be lawful and reasonable where the employer has a legitimate reason for requiring that employee’s attendance in the office. It is important that employers assess each employee on a case-by-case basis and consider any legitimate reasons raised by employees for continuing to work from home, particularly where medical evidence recommends an adjusted way of working for that employee’s situation.

This article provides general commentary only. It is not legal advice. Before acting on the basis of any material contained in this article, seek professional advice.


Author: Lachlan Chuong, associate in our disputes practice