17 Jan UPDATE FOR EMPLOYERS RESPONDING TO COVID-19 IN THE WORKPLACE
The impact of COVID-19 on businesses continues to evolve, especially with the easing of restrictions and the opening of borders.
We are now seeing an ever-increasing daily numbers of individuals being diagnosed with COVID-19 and a significant increase in individuals deemed close contacts.
As many of our freedoms are returning, we are seeing many businesses having to temporarily shut down or operate on limited staff because of staff being required to self-isolate.
Easing of close-contract requirements for critical workers
Prime Minister Scott Morrison has announced that employees across a range of critical industries that are close-contacts of a positive COVID-19 person will now be able to attend their work once the employee has received a negative rapid antigen test. This is to provide more flexibility for employers to manage their workforce.
Restrictions for employees in the food and grocery industry supply chain were eased earlier during the week. The easing of restrictions has now extended to all transport, freight and logistics employees (including service station employees), healthcare and support workers, emergency services (including law enforcement and correctional services,) energy resources, water and waste management and food and beverage (excluding hospitality) employees as well as the food distribution system and production system, telecommunications, data, broadcasting and media, education and childcare.
Recent Queensland Direction
The Queensland Government also published on 10 January 2022, the Isolation of Diagnosed Cases of Covid-19 and Management of Close Contacts Direction (No. 3) (“the Direction”) to respond to the current COVID-19 situation.
This Direction came into effect at 9.30am AEST on 10 January 2022 and sets out the requirements for individuals who have been diagnosed as positive for COVID-19 and who are considered close contacts of a diagnosed person.
Significantly, the Direction provides that a close contact required to quarantine must not leave the premises in which they are quarantining unless an exemption applies.
An example of one of the exemptions likely relevant to some employers which may apply to their employees, is where a close contact may leave the premises in which they are quarantining to perform work in a critically essential role and the person or their employer can provide evidence, if requested by an emergency officer (public health) that the close contact meets the requirements under Part 3 of the Direction regarding critically essential workers.
Specifically, clause 22 of the Direction enables an employer in a critical industry to identify and create what is termed a Critical Worker List (“CWL”) of critically essential roles. The close contact can only leave the quarantine premises to perform that critically essential role identified on the list, only if they have no symptoms consistent with COVID-19 and are fully vaccinated. Fully vaccinated means a person has received the prescribed number of doses, including a booster dose where eligible, of a COVID-19 vaccine approved for use in Australia by the Therapeutic Goods Administration. They must also comply with certain requirements regarding masks, travel, symptom surveillance, hand hygiene, RAT etc.
It is important to note that a critical essential role is one that:
- requires a person with particular skills; and
- must be performed in person at the workplace; and
- must continue to be performed to:
- prevent an immediate risk of death or serious injury to a person; or
- prevent serious harm (social, economic or physical) in the community.
Further, a critical industry means:
- Health;
- Emergency services including police, the Queensland State Emergency Service, maritime rescue, the Coast Guard and the Rural Fire Service;
- Power and utilities;
- Stores in remote locations or communities;
- Essential retail (including supermarkets);
- Freight and Logistics, including freight transport by air, rail, road or sea;
- Public Transport;
- Education – secondary, primary and kindergarten school teachers;
- Agriculture and Fisheries production;
- Resources;
- Major manufacturing, distribution and critical supply changes (food, pharmaceuticals and petrol).
If an employer requires a close contact to attend the workplace to perform a critically essential role, the employer must, as soon as practicable and no later than three days after the close contact first attends the workplace:
- submit the CWL to a specifically nominated Queensland Government email address; and
- keep a record of the CWL to be produced if requested by an emergency officer (public health).
The CWL is subject to review by the Director General or equivalent of a Queensland Government Department or Agency, or delegate and will be invalid if the employer has incorrectly identified itself as a critical industry or incorrectly assessed the critically essential roles against the conditions above.
If you need assistance on determining if you are in a critical industry and assessing if there are critically essential roles in your business, or otherwise ensuring compliance with the Direction, please contact the team at HR Law.
You can access the Direction in full here:
Extension of unpaid pandemic leave (Schedule X) in many awards
The Fair Work Commission has extended the entitlement to unpaid pandemic leave under Schedule X in many modern awards from 31 December 2021 until 30 June 2022.
The extension of Schedule X applies to 74 modern awards. Employers are reminded to check any applicable modern award to see if Schedule X has been extended as not all modern awards have had Schedule X extended, for example, the Clerks – Private Sector Award 2020 and the Road Transport and Distribution Award 2020.
See our previous article on Schedule X provisions here: https://www.hrlaw.com.au/hr-law-newsletter-3/
Eligible employees can access up to two weeks of unpaid pandemic leave (or more if the employer agrees) because the employee cannot work due to:
- the requirement to self-isolate in accordance with Government or medical authorities or on the advice of a medical practitioner; or
- because of measures taken by Government or medical authorities in response to the pandemic such as an enforceable direction restricting non-essential businesses.
Full-time, part-time and casual employees can access this leave immediately as it does not have to be accrued. Employees do not have to use all of their paid leave before accessing unpaid pandemic leave. The full two weeks can be taken and it does not have to be prorated for those employees who do not work full-time.
Unpaid pandemic leave does not affect other paid or unpaid leave entitlements and counts as service for entitlements under:
- modern awards; and
- the National Employment Standards
Employees are required to advise their employer as soon as possible (which can be after the leave has started) that the employee is taking unpaid pandemic leave, the reason for taking the leave and how long they expect to be off work.
An employer can request evidence from the employee that clearly shows why the employee has taken the leave.
Pandemic Leave Disaster Payment and COVID-19 Hardship Payments
The Pandemic Leave Disaster payment is available to eligible employees who cannot work and earn an income because they have to self-isolate or quarantine due to COVID-19 or having to care for someone who has been required to self-isolate or quarantine due to COVID-19.
Different States will have different eligibility requirements for payment. For example, in Queensland, an employee will not be eligible for payment if during the employees isolation period, the employee has or will receive any income, earnings or salary from paid work, any income support payments, ABSTUDY, Living Allowance, Parental Leave Pay or Dad and Partner Pay, a Queensland Hardship Payment or the COVID-19 Disaster Payment. This payment is not available if the employee decides to self-isolate without a health official directing the employee to do so.
There are some States and Territories also providing hardship payments (as referenced above) for particular employees such as those that do not have access to certain paid leave entitlements or cannot work because the employee is awaiting a COVID-19 test.
Changes to the Pandemic Leave Disaster Payment from 18 January 2022
From 18 January 2022, employees who have lost at least one day of work because they are isolating due to being COVID-19 positive, caring for someone who is COVID-19 positive or meeting the definition of a close contact, may be eligible for up to $750.00.
The Pandemic Leave Disaster Payment will be scaled based on the number of hours of work the individual has lost or expects to lose during an isolation period of up to seven days, for example, an employee who has lost or may expect to lose 20 hours or more will be entitled to $750.00. While an employee who has lost or expects to lose at least a day of work or up to 19 hours will be entitled to $450.00.
Individuals have 14 days from the commencement of their isolation period to claim the payment.
A financial hardship test will apply, with individuals who have available funds of $10,000.00 or more ineligible.
Accessing leave during quarantine or self-isolation
Under the National Employment Standards employees are entitled to take paid sick leave if they cannot work because of a personal illness or injury. An employee who is required to quarantine or self-isolate because of an enforceable Government direction may discuss leave options or flexible working arrangements with their employer. This could include:
An employee who is on, or decides to take annual leave during a quarantine or self-isolation period can instead take their accrued sick leave if they become ill or injured. The usual rules for taking sick leave apply including:
- informing their employer as soon as possible; and
- providing evidence (if required by the employer).
Pay during quarantine and self-isolation if working from home
Employees working from home during self-isolation or quarantine have to be paid for the work they are doing. Full-time and part-time employees should also be paid their normal pay if:
- the employer directs them to stay at home;
- the employee is not sick with COVID-19; and
- the employee is ready, willing and able to perform work.
Employees are not entitled to be paid (unless they use paid leave entitlements) if they cannot work because:
- an enforceable Government direction requires them to self-quarantine;
- Government-imposed travel restrictions are in place, for example the employee is stuck overseas; or
- the employee is sick with COVID-19.
Employers are reminded to consider any applicable modern award, enterprise agreement, employment contract or workplace policies that may apply as employees may be entitled to more generous provisions.
Seek advice
There are continual changes in both State and Federal Government responses to the COVID-19 pandemic. We acknowledge it can be very difficult for employers to know what their legal obligations are when it comes to managing their workforce in this ever-changing landscape.
HR Law is here to assist your business during these difficult and uncertain times. Please get in touch with our team if you require specific advice on any of the matters discussed above.
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