Coronavirus: Frequently asked questions by employers in the midst of an outbreak

As we’ve entered a new year, we’ve seen the emergence of a new danger, in the form of the outbreak of the novel coronavirus. The first cases were reported in the Chinese city of Wuhan, in Hubei Province on 31 December 2019 when a number of people were diagnosed with pneumonia like symptoms, and since then has spread throughout the world, including to Australia, with 12 cases confirmed in Australia.

With the death toll at 362, and more than 17,300 infections confirmed globally, countries around the world are currently engaging in a range of quarantine measures to try to stem the rate of infections and save lives.

This article summarises the most frequently asked questions about Coronavirus that our team have fielded since the beginning of the year.

 

FAQ: What measures can I put in place to protect the safety of my staff from the risk of infection?

In China, a number of multinational companies have suspended operations, restricted opening hours or directed to staff to work from home.

While the threat of the virus spreading across Australia remains low, to help prevent the spread of the virus, the federal Government is recommending that people ensure they are practicing good hand hygiene and sneeze/cough hygiene.

During this time, you should encourage your staff to:

• wash their hands often with soap and water, or alcohol-based hand gel, before and after eating as well as after attending the toilet; and
• coughing and sneezing into their elbow.

Similarly, you may consider providing personal protective equipment (PPE) like face masks to customer facing staff to provide some protection against the spread of the virus.

 

FAQ: The threat of Coronavirus has severely impacted supply of stock and foot traffic in my store. Can I direct employees to take annual leave or stand employees down until business picks up?

Depending on the location of your store or your customer base, you may be facing an unexpected downturn in business during the traditionally busy Lunar New Year period. In China, a number of multinationals have suspended their operations until the threat has been downgraded.

With a few exceptions, employers cannot generally direct employees to take annual leave without the consent of the employee. The main exceptions being in the case of a close down, or excessive leave accrual.

Some modern awards, like the General Retail Industry Award 2010, permit for an employer to require an employee to take annual leave as part of a close-down of its operations. However, such a direction requires four weeks’ notice of the close down to be provided to comply with the relevant clause. Accordingly, this exception may have limited utility unless an employer is able to anticipate that they may have to temporarily close down their business as a result of the impact of the virus.

Overall, employers have limited capacity to direct employees to take annual leave. Instead, where employers would like to encourage the taking of annual leave during this period, they may instead consult directly with employees and seek expressions of interest from those who may be willing to take annual leave during the period.

 

FAQ: I have a staff member who has recently returned from China. Can I require them to provide a medical clearance before they return to work?

In short, yes. In you have reasonable concerns for the safety of the recently returned employee and your other staff, you can require the employee to provide medical clearance of their fitness to return to work.

 

FAQ: I’m concerned one of my staff may have Coronavirus. What should I do?

You may face a situation where an employee may begin to demonstrate flu-like symptoms, including fever, cough, sore throat and shortness of breath. They have recently visited or had contact with someone from mainland China. There is a chance they may have contracted the novel coronavirus, but how should an employer respond?

Importantly, do not make assumptions and take action based only on your employee’s ethnicity – any action you take should be reasonable, sensitive and balanced in the circumstances.

Of course, employers have a duty of care to ensure the health and safety of their workers as far as is reasonably practicable, and to provide a work environment free from risks to health and safety.

Similarly, workers have a duty to take reasonable care for the health and safety of themselves and other employees, and to comply with directions given by their employer to allow their employer to comply with their duty of care.

Baring these duties in mind, employers do not have a right to direct employees to take personal leave under the National Employment Standards.

So, in the first instance, where an employee may be suspected to have contracted the novel coronavirus, employers may encourage that the employee take a period of personal leave.

However, where an employee refuses to take personal leave, to fulfil the relevant work health and safety duties above, an employer has a number of options:

• if practicable and reasonable in the circumstances, the employer may direct the employee to perform their duties away from the workplace; or
• if reasonable, direct the employee to not attend work and to attend a medical appointment to obtain medical clearance for work.

It should be noted that directing an employee to do the things noted above can be complicated, so we encourage you to contact us to obtain advice specific to your circumstances.

 

FAQ: Customers have directed xenophobic remarks and abuse to my staff since the Coronavirus outbreak. How should I respond?

Unfortunately, reports of racist and xenophobic behaviour have increasingly characterised the reporting on the virus, particularly in areas with a higher Asian demographic.

Most progressive retailers take a no tolerance approach to bullying or harassment against their staff by customers or members of the public. The same rules should apply in the face of the threat of coronavirus. This means, at a minimum:

·         have a plan in place so that staff know how to appropriately respond to racist comments or abuse. This might include seeking intervention by a manager, exercising discretion to evict the customer from the store if safe to do so and filing an incident report;

·         for affected staff, make an employee assistance or counselling program available to them should they need it. More serious incidents may result in a workers’ compensation claim.

Similarly, employers should not permit or encourage staff to racially profile customers, to “ban” or “evict” customers of Asian appearance from their store simply because they are concerned about the Coronavirus. Any action that is taken by employers to protect their staff should be measured and reasonable.

 

What else can I do?

If any of the matters in this article have raised further questions or you a facing some of the challenges described in this article, please contact the NRA Legal team on 1800 572 679 to ensure you follow the correct process in this difficult time.

 

By Thomas Parer and Lindsay Carroll, NRA Legal