Employ­ees Sol­dier­ing On’ With COVID-19: What Can Employ­ers Do?

The Change in Rules

At a recent nation­al cab­i­net meet­ing, the lead­ers of the states and ter­ri­to­ries agreed that from Octo­ber 14 peo­ple infect­ed with COVID-19 no longer need to iso­late. The peri­od of manda­to­ry iso­la­tion after test­ing pos­i­tive was recent­ly reduced from 7 to 5 days. It will now be removed altogether.

Those who work in high-risk set­tings, such as aged care, dis­abil­i­ty care, Abo­rig­i­nal health­care and hos­pi­tal care sec­tors, will not be able to return to work for 5 days after test­ing pos­i­tive. Reflect­ing this, gov­ern­ment sup­port pay­ments will con­tin­ue for cer­tain eli­gi­ble employ­ees in those sectors.

Notwith­stand­ing the removal of the oblig­a­tory iso­la­tion peri­od, the offi­cial health advice for peo­ple who test pos­i­tive and have symp­toms is to work from home and avoid attend­ing the workplace.

The removal of the manda­to­ry iso­la­tion peri­od rais­es the prospect of employ­ees attend­ing work while infect­ed, even if they are dis­play­ing symp­toms. Not every­one will nec­es­sar­i­ly fol­low the offi­cial health advice. Employ­ers need to con­sid­er and address this possibility.

As not­ed above, for employ­ers in high-risk envi­ron­ments deal­ing with the elder­ly, sick or vul­ner­a­ble, the con­sid­er­a­tion will be rel­a­tive­ly straight­for­ward as COVID-19 pos­i­tive employ­ees are pro­hib­it­ed from return­ing to work for 5 days. Those who attempt to do so should be direct­ed to go home immediately.

Sol­dier On?

What about employ­ers in oth­er envi­ron­ments? While the famous slo­gan of one brand of med­ica­tion, Sol­dier On’, is now large­ly regard­ed as a mis­guid­ed mes­sage to work­ers who are unwell, some might still see it as a badge of hon­our and turn up to work even if infect­ed with COVID-19 and symp­to­matic. What can employ­ers do in such situations?

While much depends on the cir­cum­stances of the spe­cif­ic work­place, and the risks asso­ci­at­ed with COVID-19 trans­mis­sion and infec­tion in that work­place, there are some gen­er­al obser­va­tions that can be made.

What Can Employ­ers Do?

As with manda­to­ry vac­ci­na­tion, it is open to employ­ers to adopt poli­cies that go beyond those pre­scribed by gov­ern­ment. Employ­ers have an oblig­a­tion to main­tain a safe work­place, includ­ing address­ing risks to health and safe­ty (such as COVID-19 trans­mis­sion and infec­tion). While affect­ed employ­ees might argue they can attend work because the gov­ern­ment does not pre­vent it, that is not the full sto­ry. Employ­ers can set their own rules, although there might be chal­lenges aris­ing from the effec­tive appli­ca­tion and enforce­ment of such rules. Giv­en the changes in manda­to­ry iso­la­tion are immi­nent, it is time­ly for employ­ers to con­sid­er the approach they will adopt.

Where an employ­ee is COVID-19 pos­i­tive and dis­play­ing symp­toms turns up to work, employ­ers have a strong basis to direct the employ­ee to go home. Where the employ­ee can work from home, they could then be direct­ed to do so and to not return to the work­place until they are, at the very least, asymptomatic.

The sit­u­a­tion becomes more dif­fi­cult where the work ordi­nar­i­ly done by the employ­ee can­not be per­formed at home. The employ­ee can be direct­ed to leave the work­place and go home, but the thorny ques­tion of pay­ment for the day then aris­es. If the employ­ee has per­son­al leave avail­able they should be encour­aged to take it for the day and sub­se­quent days they are affect­ed. They can­not valid­ly be direct­ed to do so, nor can an employ­er put’ the employ­ee on per­son­al leave (con­trary to pop­u­lar belief). Where the employ­ee refus­es to take a per­son­al leave day, or has no leave avail­able to them, then the employ­er has a tough choice to make as to whether they pay the employ­ee for the day, or assert that the employ­ee was not fit for work (and there­fore will­ing’ but not ready’ and able’) on that day and there­fore not enti­tled to pay­ment. To not pay is a big call – it could arguably lead to an employ­er repu­di­at­ing the employ­ment con­tract lead­ing to con­struc­tive dis­missal. It is a step to be tak­en on the basis of ful­ly con­sid­ered advice.

Where an employ­ee is COVID-19 pos­i­tive but asymp­to­matic, the same direc­tion to leave the work­place could be issued. Where the employ­ee can work from home, they could be direct­ed to do so. If a pos­i­tive but asymp­to­matic employ­ee can’t work from home and either refus­es to take per­son­al leave or has no such leave avail­able, the argu­ment an employ­er does not need to pay them will be weak­er than if they are symp­to­matic. An alter­na­tive might be to man­age pos­i­tive but asymp­to­matic employ­ees by sep­a­rat­ing them from oth­ers (phys­i­cal dis­tanc­ing) or requir­ing them to wear masks, reduc­ing the risk they might infect others.

Plan­ning Pre­vents Problems

The time for employ­ers to reflect upon this issue is now, before the imple­men­ta­tion of the change in iso­la­tion rules. Once the employ­er has decid­ed its posi­tion on pos­i­tive employ­ees attend­ing work (both symp­to­matic and asymp­to­matic), it should make employ­ees aware of that posi­tion and con­sid­er pro­mul­gat­ing it in a pol­i­cy. The terms of any such pol­i­cy should be informed by the applic­a­ble legal prin­ci­ples and leave enough flex­i­bil­i­ty for the employ­er to fair­ly and sen­si­bly deal with the cir­cum­stances of each case.

Final­ly, there are also going to be employ­ees with health con­di­tions or oth­er vul­ner­a­bil­i­ties who will not want pos­i­tive COVID-19 employ­ees (even those who are asymp­to­matic) in the work­place. While the gen­uine­ly held views of employ­ees should almost always be respect­ed and con­sid­ered, ulti­mate­ly the way in which COVID-19 pos­i­tive employ­ees in the work­place should be dealt with by an employ­er is pri­mar­i­ly a ques­tion to be deter­mined by an objec­tive assess­ment of the health and safe­ty risk they pose. While some employ­ees might be cav­a­lier about attend­ing work with COVID-19 symp­toms, at the oth­er extreme some employ­ees are want­i­ng employ­ers to treat the risks posed by the pan­dem­ic as if it was still pre-vac­cine 2020, rather than high­ly vac­ci­nat­ed 2022. The relax­ation of the iso­la­tion require­ments by the gov­ern­ment reflects the evo­lu­tion of the pan­dem­ic. Employ­ers are enti­tled (indeed required) to adapt their approach to the ever-chang­ing situation.