Many workplaces are now receiving the green-light to open their offices and begin reintegrating their staff back into the workplace, however this can only be done with a COVIDSafe plan in place, as per the government’s announcement on lockdown easing.
Commencing the return to work seems like a straight-forward task, however, for many Australian businesses there has been an increase in employers opting to continue working from home in flexible arrangements.
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What does this mean for the many Australian employers who are trying to resume business as usual? HR Legal partner, Georgie Chapman, has been assisting employers nation wide in the return to work and where they stand on this topic.
Simply put, employees cannot unreasonably refuse to return to work. Where an employee refuses to work, an employer can give a lawful and reasonable direction to return to the office.
Should the employee have issues with returning to work due to safety concerns and the possible infection of COVID-19, or otherwise due to parental or caring responsibilities, the reasonableness of not attending work will depend on the individual circumstances and should be addressed accordingly.
If an employee refuses without a valid reason, the employer may, depending on the circumstances, consider disciplinary process against the employee for rescuing to follow a lawful and reasonable direction.
HR Legal is urging employers to start thinking about how to navigate the return to work.
The team have outlined their top five tips for employers to consider in the process below.
Understand the requirements in your State
Step 1 of the Roadmap encourages employees to ‘work from home if it works for you and your employer’. This suggests that it will be a matter between each employer and its employees, and will taken into account a number of factors including whether work can be effectively performed from home, whether the employer has a preference that employees partially return to the office/usual workplace, and other personal circumstances such as parental responsibilities.
Develop a safe plan for re-opening your workplace
For those employers who are preparing to re-open the workplace, safety obligations will be crucial. We suggest employers develop a COVID-19 plan in accordance with National COVID-19 Coordination Commission (NCCC) guidance and the Safe Work Australia National COVID-19 Safe Workplace principals. These plans should cover physical distancing, handwashing and hygiene, cleaning, and monitoring symptoms. There should be clear guidelines regarding staff staying home if they are unwell (even with mild symptoms), and staff should be reminded of this at regular intervals. Employers should also bear in mind psychological safety in returning employees to the usual workplace.
Employees cannot unreasonably refuse to return to work
Where an employee refuses to work, an employer can give a lawful and reasonable direction to attend work. Where an employee has concerns about returning to work because of safety concerns and possible infection of COVID-19, or otherwise due to parental or caring responsibilities, the reasonableness of not attending work will depend on the individual circumstances and should be addressed accordingly.
Do not attempt to control employees’ out of hours conduct
Although employers may wish to give directions to staff about engaging in such activities out of concern for staff potentially exposing themselves to the threat of COVID-19, it is important for employers to understand that in most cases, they do not have the ability to regulate employees’ out of hours conduct.
Do not direct employees to download or use the COVIDSafe app
The Health Minister made a determination under the Biosecurity Act 2015 (Cth) that prohibits a person (including employers) from requiring that another person (including employees) download or use the COVIDSafe on a mobile telecommunications device, or treat a person unfavourably as a result of their choice not to download or use the app (this will constitute unlawful adverse action). Employers can encourage employees to download the app but must avoid adverse action should employees opt not to download it.
