By Geeta Shyam and Ellen Bevan, Wolters Kluwer Content Management Analysts.
The outbreak of a new coronavirus in China has caused alarm and anxiety throughout the world. As Australian authorities provide direction for reducing the risk of infections in Australia, employers are being forced to navigate their way through work health and safety (WHS), employment and anti-discrimination laws.
The information below provides an overview of what employers should do to prevent the spread of the virus in the workplace whilst ensuring compliance with WHS, employment and anti-discrimination obligations.
What is the new coronavirus?
Coronavirus is the name given to a family of viruses. These viruses can cause a variety of illnesses, ranging from the common cold to Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS).
The most recent outbreak has been recognised as a new type of virus within the coronavirus family. The new strain is being labelled the “novel coronavirus” or “2019-nCoV”.
Health authorities and experts are still learning about the virus, including the incubation period, how it transmits and its impacts. There is evidence of human-to-human transmission.
Like other coronaviruses, the novel coronavirus may cause respiratory illnesses, such as pneumonia. Symptoms associated with the virus may include:
- Flu-like symptoms, eg sore throats, sneezing and coughing
- Difficulty breathing.
The virus is diagnosed through medical tests and chest x-rays. Persons who have the virus are being treated in isolation to prevent the spread of the virus.
The origins of this virus have been traced to Wuhan City in the Hubei Province of China. However, there have now been several confirmed cases outside of China, including in Australia.
The World Health Organisation (WHO) has now declared the outbreak a Public Health Emergency of International Concern.
Do employers have a WHS obligation in relation to the novel coronavirus?
The novel coronavirus is not an occupational disease in most cases, as it is not typically a hazard associated with the nature of work in the majority of occupations.
However, employers do have a legal obligation to ensure the health and safety of their workers and other persons (eg customers, members of the public etc), so far as is reasonably practicable. As the presence of an infected person may pose a risk to the health of other workers and persons, employers must take reasonable action to prevent the spread of the disease in the workplace.
To comply with this duty, employers should monitor and follow the most recent advice of relevant authorities, such as the Australian Department of Health, state and territory health departments, Smart Traveller and the WHO. Doing so will assist employers in assessing the evolving risk of the novel coronavirus spreading in the workplace, and in taking proportionate measures to address that risk.
In healthcare settings, exposure to the coronavirus is a hazard associated with the nature of work. It is therefore clearly within the scope of an employer’s WHS duties. Such employers should undertake a comprehensive risk management program to eliminate or minimise infection risks so far as is reasonably practicable.
What if an employee has returned from China or has otherwise been exposed to the virus?
- people who have travelled to Hubei Province within the past 14 days
- people who have left, or transited through, mainland China on or after 1 February 2020, and
- people who have been in close contact with a confirmed novel coronavirus case,
to isolate themselves for 14 days.[†] This advice includes people who are not displaying symptoms of the virus, as it can take a number of days for the symptoms to manifest.
The advice of the Department of Health is subject to frequent change and should therefore be monitored regularly.
This advice should be communicated to all employees, and based upon this advice, employees should be required to inform their Manager and/or Human Resources personnel if they have recently returned from China or been in contact with a confirmed novel coronavirus case.
Affected employees should be prevented from attending the workplace and potentially offered work from home arrangements if possible. Employers may require employees to obtain a medical clearance before returning to work.
Employers should ensure they comply with their privacy obligations with respect to any interactions and communications with employees regarding the novel coronavirus.
Are employees entitled to paid or unpaid leave during the isolation period?
Employees who are caught by the Department of Health isolation requirements would likely be entitled to access any accrued paid personal or sick leave during the isolation period. Once this entitlement is exhausted, employees may be able to access other forms of paid leave (such as annual leave or special leave) or unpaid leave.
There are generally notice and evidence requirements for employees on personal leave, and so employees may need to provide confirmation from a medical practitioner that they are required to self-isolate.
Employers should carefully check the applicable award, agreement, state industrial legislation, employment contract and/or employer policy to help determine a particular employee’s leave entitlements in the circumstances.
Under the Fair Work Act 2009 (Cth) (FW Act), employees (other than casual employees) are entitled to 10 days of paid personal/carer’s leave per year where they are not fit for work due to personal illness or injury, or to provide care or support to an immediate family or household member who has a personal illness or injury or an unexpected emergency .
Employees who are not actually unwell but who are nonetheless caught by the Department of Health’s current isolation requirements would likely qualify for paid personal leave under the FW Act. However, the FW Act does not expressly deal with this scenario.
Employers should be careful that their actions in response to the coronavirus do not contravene anti-discrimination legislation.
The Disability Discrimination Act 1992 (Cth) allows discrimination on the ground of a person’s “disability” (including an illness or possible future illness) where that disability is an infectious disease and the discrimination is reasonably necessary to protect public health. There are similar exceptions for the protection of public health in most state anti-discrimination legislation. As such, compliance with current isolation requirements for management of the coronavirus (see above) is unlikely to constitute discrimination against at-risk employees.
Under the FW Act, employees who are absent due to illness for less than three months may be protected from dismissal where they provide evidence of their illness, even if they have exhausted their paid leave entitlements (s 352 and 772). Employees who are away for a longer period due to illness may still be protected under anti-discrimination laws or the unfair dismissal or general protections provisions of the FW Act, or if they have been on paid leave the whole time.
An employee is showing symptoms of the novel coronavirus. Can the employee be required to go home or provide evidence of their fitness for work?
If an employee presents for work while unwell, and the employer reasonably suspects that the employee may have coronavirus, then the employer should first speak to the employee confidentially about their potential exposure to the virus.
If it is established that the employee has or has potentially been exposed to the virus (for example because they have recently returned from China or have a family member who had the virus), then the employer should require that the employee not attend work in compliance with the Department of Health isolation requirements (see above).
The employer may also consider directing the employee to attend a medical examination to confirm their diagnosis and fitness for work. Employers should follow established procedures for such directions contained in the applicable award, agreement, employment contract or employer policy and ensure that they have a reasonable basis for making such a direction.
Employees who are confirmed to have the coronavirus should not be allowed to attend work while they are unwell and would be entitled to access any accrued paid personal leave in accordance with entitlements under the FW Act, award, enterprise agreement, state industrial legislation, employment contract or employer policy.
If an employee with coronavirus has attended the workplace, then the employer should also consider any measures that may be necessary with respect to other employees who were in close contact with the affected employee.
Should travel to China for work purposes be allowed or continued?
Employers should accordingly stop their employees from travelling to all parts of China for work purposes.
Arrangements should be made for the return of workers already travelling in China. Such workers should be instructed to follow the advice of the Australian Department of Health in relation to isolation and other precautions.
Infections of the coronavirus have also spread outside of China, including to the United States of America, United Kingdom, Japan, South Korea, Thailand and Taiwan. Employers should stay informed about the affected countries and direct their employees accordingly.
Clear communication should be maintained with employees who are travelling overseas; they should be kept informed of the latest travel and health advice from relevant authorities. Employees feeling unwell should inform HR and be provided with access to medical assistance at the earliest opportunity.
What if employees are delayed in returning to Australia?
The Australian Government is returning Australian citizens from Wuhan to a quarantine facility on Christmas Island where they will be quarantined for 14 days. Foreign nationals (excluding Australian permanent residents) who are in mainland China will not be allowed to enter Australia until 14 days after they have left or transited through mainland China. Many other countries are also restricting entry for people travelling from China.
Given these restrictions, it is likely that many Australian-based employees will be delayed in returning to work for an indefinite period.
Those who are quarantined on Christmas Island will likely be entitled to use their accrued paid personal leave as they are arguably medically unfit for work, like those employees in Australia who are required to self-isolate (see above).
For those experiencing travel delays, employers may consider allowing employees to extend any period of paid annual leave, or to access special leave. In some circumstances, these employees may be entitled to paid personal leave.
If travel is for work purposes, employers will continue to be responsible for the health and safety of the employees.
How can my organisation ensure it is prepared for a coronavirus pandemic?
All organisations should have contingency plans for a possible coronavirus pandemic. To prepare for such events, ensure that relevant policies are in place and updated with the latest advice from authorities.
Work health and safety (WHS) policies should ensure that employees suffering from infectious diseases, or who present the symptoms of such diseases, can be isolated from the workplace. Such employees may be required to present a medical certificate confirming their fitness for work before being allowed to resume their normal duties.
Where possible and safe to do so, remote working arrangements can be made for employees who cannot attend the workplace. It is accordingly a timely opportunity to review work from home policies to ensure all relevant hazards and risks have been identified and managed appropriately.
Travel policies should also be reviewed to ensure travel is restricted when necessary, and appropriate communication protocols are in place.
All policies should be reviewed and revised in light of the advice of relevant authorities. For this purpose, employers should regularly monitor the updates provided by the relevant Health Departments and Smart Traveller.
All policies should be communicated to workers, so that they are aware of the behaviours expected of them and of the measures being taken in the workplace in response to the coronavirus outbreak.
In all employee communications, the privacy of infected or potentially infected workers should be maintained.
Information and instruction should be provided to workers about the novel coronavirus. To ensure its spread can be prevented at the workplace, employees should be educated about the symptoms associated with the virus, and the actions they should take if experiencing such symptoms.
Safe hygiene practices should be adopted and encouraged in the workplace to prevent the spread of the disease in the workplace.
In healthcare settings, additional controls will be required, e.g. the use of standard precautions, transmission-based precautions and PPE.
assistance programs should be made available for affected employees,
keeping in mind that infection or isolation may affect their mental health and
[†] Current as at 4 February 2020. Please check the Department of Health website for ongoing updates.
[‡] Current as at 4 February 2020. Please check the Smart Traveller website for ongoing updates.