Millions of Australian employees must once again choose between their health and paycheck, as the Omicron variant of COVID-19 continues to disrupt the business community.
While many employers implemented more stringent sick leave policies at the start of the pandemic due to vaccine rollouts and worker shortages, some of them have already been scaled back.
According to Australian Council of Trade Unions acting secretary Liam O’Brien, “forcing potentially infected staff back to work will only exacerbate the already rampant spread of the highly infectious Omicron strain throughout workplaces and the broader community, putting the safety of all Australians at risk.”
Legal obligations and employers’ conundrum
Both the employers and employees have legal obligations and should discuss their working arrangements to support workplace health and safety.
The most fundamental obligation, both in common law and as a statutory duty under enacted work health and safety (WHS) legislation of states and territories, is that employees with COVID-19 are not permitted to work.
In terms of COVID-19, these obligations require employers to take all reasonably practicable steps to prevent it from spreading in the workplace.
This includes procedures that promote social distancing, hygiene, cleaning; a plan to respond to any possible transmission; and following government health orders.
Sally McManus, Secretary of the Australian Council of Trade Unions, stated that if an employee has COVID-19, whether symptomatic or not, the employer tries to coerce them to return to work before the isolation period ends, the WHS Act and public health orders are violated.
“Regardless of whether you have COVID-19, if you are unfit for work, you have a right to leave,” he said.
“Even if you are casual or have run out of paid personal/sick leave, you are entitled to leave, and your employer must not take action against you for doing so, even if you can’t get a test.
“You [employee] need to notify your employer as soon as you can. Every employee has a right to this leave, and employers must not coerce employees into not exercising this right.”
“Employers can be penalised or fined, and you could be awarded compensation if they try and coerce you [employees].”
Unpaid pandemic leave and annual leave changes
Employers can direct employees who are sick with coronavirus not to work. Employers can do this if they’re acting reasonably and based on factual information about health and safety risks.
Furthermore, suppose an employer has directed an employee not to report to work in these circumstances. In that case, the employee is not entitled to pay unless they take paid sick leave or another type of paid leave.
Paid sick leave
Employees, both full-time and part-time, can take paid sick leave if they cannot work due to COVID-19. They can take unpaid sick leave if they have no paid sick leave remaining. An employer cannot force an employee to use accumulated sick or carer’s leave.
Employees cannot be fired from the job if they are required to quarantine or self-isolate due to a workplace health and safety law.
Here’s more on Protections at work.
Notice and medical certificates
If their employer requests it, an employee must provide reasonable evidence that they are unfit for work. This also applies to situations relating to COVID-19.
When the evidence has to be given
Employers can ask employees to provide evidence for as little as one day or less off work. An employee who doesn’t give their employer evidence when asked may not be entitled to be paid for their sick or carer’s leave.
Paid carer’s leave
Employees can take carer’s leave (paid or unpaid) if they need to look after a family or household member who’s sick with coronavirus or affected by an emergency.
Paid carer’s leave is available to full-time and part-time employees when they need to look after a family member or a member of their household who needs care or support because of a personal illness, injury or an emergency.
Unpaid carer’s leave
Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full-time and part-time employees can take unpaid carer’s leave if they have no paid sick or carer leave. See Unpaid carer’s leave.
Here’s more on the leave policy during COVID-19
Casual employees, out workers and independent contractors
Casual employees aren’t entitled to paid sick or carer’s leave under the National Employment Standards. Casual employees are paid a casual loading instead of accumulating paid leave entitlements.
Casuals who get sick with COVID-19 may be eligible for unpaid pandemic leave.
Advice for employers
According to recent data from Employsure’s advice line for small business owners, vaccination-related calls are still one of the biggest worries for employers as they try to balance enforcing restrictions and keeping their workplace safe.
Catching the virus may feel like a mild illness to some, but the effects can last months for others. Employers who have employees sick with COVID-19 symptoms such as severe fatigue for more than 14 days should be prepared for lengthy staff absences.
“With more people likely to catch the virus now the floodgates have opened if an employee develops long-term symptoms; as a result, employers should treat it like any long-term absence and develop a plan to ensure their business doesn’t suffer,” said Employsure Business Partner Emma Dawson.
“When you have staff off sick for long periods, it is important to understand their level of illness and how it can affect their professional and personal life.
“Employers may want not just to obtain a medical certificate, but also a medical report (with the employee’s permission) that can help them to understand how long the illness will likely last and what they can do to help.
“If an employer is struggling to meet demand or is having extended trouble covering shifts, with no indication of whether the employee will be fit to return to work in the foreseeable future, it’s understandable they might want to consider further action like dismissal,” continued Ms Dawson.
“This can, however, put a business at risk. Termination should only be considered after all other avenues have been explored. If not, an employer could face an unfair dismissal claim.
“Employers should seek legal advice if there is any doubt, or contact Employsure for the correct way to deal with the situation.”
This article is not legal or financial advice, we have not considered your personal situation, we strongly recommend you seek legal advice from your own lawyer or employment law service provider.
Here are some links from the Fair Work Ombudsman for more information:
- Sick leave due to coronavirus
- Quarantine and self-isolation: pay and leave options
- Notice and medical certificates