With the Queensland borders now open for business, as expected, we have seen a fairly rapid increase in the number of COVID-19 outbreaks across the community, and it’s all but a guarantee that we can safely expect to see the number of cases in the community set to increase further yet, as well as an increase in the number of employees that are required to quarantine or self-isolate if they are close contacts to COVID-19 cases or if they are members of a household with somebody who is.

Following on from that, we’ve put together a list of tricky FAQ’s from businesses who are finding themselves in a brave new world when it comes to managing COVID-19 outbreaks in businesses and communities below:

A FEW COMMON Q&A's

Q: Are my employees entitled to utilise their sick leave entitlements if they are required to quarantine whilst waiting for a test result, or if they are requested to do so by Queensland Health?

A: The Fair Work Act entitles employees to use their sick leave entitlements only if they are ill or injured or if they are required to care for somebody in their immediate family or household who is ill or injured.

If your employee:

• Has been diagnosed with COVID-19;
• Is displaying COVID-like symptoms;
• Is otherwise physically ill or injured;
• Is caring for somebody in their immediate family or household that has COVID-19 or is otherwise ill or injured, or is suffering from COVID-like symptoms –

Then they are entitled to use their sick leave entitlements during a quarantine period.

However, if your employee is:

• Asymptomatic and has not yet been confirmed as having contracted COVID-19 recently;
• Not ill or injured in any way;
• Not caring for any person in their immediate family or household who is ill or injured;
• In a situation where they have been asked to quarantine but all household members (including the employee) are asymptomatic; or
• Only required to quarantine as a matter of procedure (i.e., whilst waiting for a PCR test result, or in order to follow a requirement from Queensland Health, etc.)

Then, strictly speaking, employees do not have a genuine entitlement to use their sick leave during this period. Instead, the employer may suggest for the employee to take the period that they are required to quarantine for as annual leave or Leave Without Pay (LWOP).

Q: Can I ask for proof of illness or injury before I grant sick leave to an employee in quarantine?

A: Yes, under Section 107 of the Fair Work Act, an employer is entitled to request for proof of illness prior to authorising an application for sick or carers leave for an employee. Under the Act, if requested by an employer, an employee must provide the employer with evidence that would satisfy a reasonable person of proof of their illness or that of their household or immediate family member for the sick leave to be validated.

Q: Do I have to grant annual leave for an asymptomatic person in isolation or quarantine?

A: Most Awards and Agreements require that Annual Leave should be taken at a time that is mutually convenient to the employer and the employee. Technically, although the quarantine process is an inconvenience (arguably mutually inconvenient to both parties), the National Employment Standards dictate that Annual Leave should not be unnecessarily refused. Given that the Disaster Payment cannot be claimed from Centrelink until or unless all other leave entitlements have been exhausted, and to avoid the unnecessary spread of Covid-19 around the community from people defying their lawful obligations and coming into work if they are financially burdened, we strongly recommend that any Annual Leave requests made by an employee to facilitate a Covid-19 quarantine or testing process should be granted. If a person’s Annual Leave allocation is exhausted, then they may be placed on Leave Without Pay and may then be eligible for the Covid Disaster payment from Centrelink.

Q: Do I have to pay employees if I have to close my business due to a Covid-19 outbreak at my premises or if I do not have a sufficient number of staff left to be able to run my business?

A: No. Under section 524 of the Fair Work Act, an employer can stand down an employee without pay where they can't usefully be employed because of a stoppage of work for any cause for which the employer can't reasonably be held responsible.

To stand down an employee using these provisions, an employer needs to be able to show that:

• There is a stoppage of work
• The employee to be stood down can't usefully be employed because of the stoppage (this isn't limited to the work an employee usually performs)
• The cause of the stoppage must be one that the employer can't reasonably be held responsible for.

Some examples of when employers may be able to stand down employees include:

• If an enforceable government direction required the business to close (which means the employee can't be usefully employed, even from another location)
• If a large proportion of the workforce was required to self-quarantine and the remaining employees/workforce can't be usefully employed
• If there was a stoppage of work due to a lack of supply for which the employer can't be held responsible.

An employer should discuss and communicate any decisions they make about implementing a stand down with their employees.

We hope this blog has answered any questions you might have in regards to managing Covid-19 outbreaks in businesses and communities. If you are still unsure, feel free to reach out.

📧 hr@hrdynamics.com.au
📞 (07) 4051 7307 or 0438 735 926