Hi there 

Just when we thought things were getting back to normal, the Delta variant has arrived on our shores throwing us all into chaos again.  It is beginning to feel like 2020 all over again ..... but without the safety net and flexibility of the JobKeeper system.

We thought it would be timely to send out a reminder of what you need to do as an Employer in the event of isolations, lockdowns and further infections. 

We thought that a Q&A might be the easiest way to answer the main questions we are receiving (as always, give us a call on (07) 40517307 if you need more tailored advice).

Q:

The scenario we are dealing with at the moment, is we have a staff member who has gone to Brisbane for personal reasons and wasn’t able to get out before the lockdown. Are we obliged to pay them if the lockdown extends beyond their annual leave?

A:

With the Lockdowns still occurring in SEQ, you are definitely going to come across this more often unfortunately. The answer for your employees can be tricky to decipher! The main principle that is applied is the preference to be able to undertake work from home or remotely while an employee is in isolation or quarantine. In some cases, this is just not possible and the Employee and Employer will need to look at flexible leave options or unpaid leave. Fair Work has confirmed arrangements for different scenarios (Source: Fairwork website):

Accessing leave during quarantine or self-isolation

Under the National Employment Standards, employees are entitled to take paid sick leave if they can’t work because of a personal illness or injury. For more information about paid sick leave, visit Paid sick and carer’s leave.  An employee who is required to quarantine or self-isolate because of an enforceable government direction should contact their employer to discuss leave options or flexible working arrangements. 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:

**letting their employer know as soon as possible

**providing evidence (if required by the employer).

If an employee is required to self-isolate due to government direction (and is not sick):

Some employees have access to unpaid pandemic leave.  Employees who are employed under one of the affected awards can access up to 2 weeks of unpaid pandemic leave (or more by agreement with their employer) if they can’t work:

** because they need to self-isolate in line 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 (for example, an enforceable government direction closing non-essential businesses).

The leave is available to full-time, part-time and casual employees in full immediately. They don’t have to accrue it.

**Employees don’t have to use all their paid leave before accessing unpaid pandemic leave.

All eligible employees can take the 2 weeks’ leave. It is not pro-rated for employees who don't work full-time.

If an Employee is in isolation or under government direction for lockdown and becomes unwell during isolation or lockdown: They can access their sick leave if they are unwell.

The tricky part is employees will typically have an expectation that the Employer will provide coverage for the isolation or quarantine period as they have not been placed in that situation voluntarily and can be reluctant to use their leave entitlements. It is important that you talk with the employee to look at all options which may include TOIL or make up time when they return to work – if things like this are not possible, then the leave entitlements will come into play.

Q:

Can I just let my employees use their personal leave if we are happy to do so:

A:

Unfortunately, this is not as easy as it sounds. Fair Work heard a matter recently where an employee was allowed to use personal leave to cover an isolation or quarantine period (and they were not technically unwell) but then later required the use of personal leave for an unrelated illness or injury but the use of personal leave during isolation meant the employee did not have the leave accruals to cover the period of genuine illness. Fair Work determined that the use of personal leave for a period that was not for an illness or injury was not appropriate and ordered the recrediting of the personal leave used.

So in plain English – approach with caution if you agree to allow employees to use personal leave for isolation or quarantine when they are not actually unwell, they may challenge you at a future time if they find themselves in a situation when they genuinely need their personal leave entitlements.

Working from Home 

As an Employer, your duty of care stretches to the home working environment. As an Employer, you can’t just turn up on your employee’s doorstep to check out their living room and working station. So where does this leave you? You need to ensure that your employee has had enough training to be able to identify their working hazards, and as usual… yep you guessed it…. document it! Remember the mantra... If it isn’t documented, it didn’t happen. If you have employees at that do work from home, I recommend that you contact Rebecca for your free Working from home checklist - rebecca@hrdynamics.com.au or give the team a call on (07) 40517307 to discuss your specific situation.

Agreement

When employees are working from home there are still expectations and standards that need to be met. We recommend implementing a Working from Home Agreement to clearly specify the terms of the arrangement prior to the employee commencing work from home. Let us know if you would like assistance implementing a Working from Home Agreement.

WH&S Self Audit questions

• When was the last Workplace – Hazard Inspection conducted?

• Have the findings been actioned? Yes/No and What Action Plan items are still outstanding?

• Is there documentation on WHS issues from staff/toolbox meetings?

• When was the last “Hazard Notification Form” received and has it been acted upon?

• Have employees had training in the safe operation of new equipment or processes?

• Has staff safety training been conducted and documented?

• Is appropriate PPE available and well maintained?

• Have all new employees, contractors and visitors been routinely inducted?

Do you need more help with navigating your isolation and lockdown requirements, your WH&S obligations or want to implement a working from home agreement?  Just give us a call or email us. 

Do you have other staffing issues that are keeping you up at night? Just reply to this email or give us a call - 07 40517307.

Kind regards

The HR Dynamics Team

Phoebe, Rebecca, Deanne, Teneal, Kim, Sheri, Kylie, Leanne, Desiree & Caitlin