On Friday, Prime Minister Scott Morrison announced Australia’s three-step framework for a COVID-safe economy, but as businesses prepare to reopen, employers are being put in a tough position as they bring their employees back into the workplace.
While in some cases a business cannot operate without their employees being physically present at the premises, the timing of the return to the workplace for others may not be so clear, Erin Kidd, a special counsel in the employment law group at McCabe Curwood, said.
“A restaurant cannot serve meals without wait staff. A shop cannot sell goods without shop assistants. A nail salon cannot perform pedicures without nail technicians. In these cases, most of the time, the point at which the employer will require its employees to return to the workplace will be clear,” Ms Kidd said.
However, with many businesses moving to models that allow work to be performed remotely and with increased flexibility, a realisation has been created among staff that they can do their jobs from home, with no commute and no dress code.
“For this reason, they may want to delay their return to the workplace for as long as possible, or not want to return to the workplace at all,” Ms Kidd said.
But, while some organisation have already flagged that certain members or their workforces will continue to work from home following the end of the pandemic, what if an employee refuses to return to the workplace once they have been told it’s time?
“Employers will need to carefully consider the circumstances of any such refusal,” Ms Kidd advised.
“Is the employee one that needs to attend the workplace in order to perform their duties, like the wait staff, shop assistants and nail technicians mentioned earlier? Or will the employee still be able to perform the inherent duties of their role from a remote location?”
In either case, she underlined, the employer’s first step in directing employees to return will be to ensure a COVID-safe plan has been developed.
This requires the employer to assess the public health orders in place at the relevant time so as not to breach the relevant restrictions. At present, that includes physical distancing and, in some workplaces, the 4-square-metre rule.
Ms Kidd said: “This may require an employer to relocate workspaces or introduce teams of workers who attend the workplace in shifts so fewer employees are present at any one time.
“Additionally, in order to comply with work health and safety laws, employers also need to ensure that they provide and maintain a safe working environment. In the current circumstances, this will require employers to ensure that their COVID-safe plan includes proper systems for maintaining effective hygiene, health monitoring and cleaning.
“It will also require employers to plan for the possibility of COVID-19 cases in the workplace.”
She explained that special circumstances will apply to some employees — those with disabilities or carer’s responsibilities will require additional consideration by the employer if they cannot legitimately return to the workplace due to matters relating to COVID-19.
“In relation to those employees, hasty decisions by an employer may give rise to allegations of discrimination or adverse action, so care must be taken and obtaining legal advice is often a good idea,” Ms Kidd said.
Moreover, she noted, employers will need to consider how their employees travel to work, and whether any community measures still in place will cause them difficulty or expose them to unnecessary health risks.
Australia’s Chief Medical Officer, Professor Brendan Murphy, has suggested that employers consider staggering their employees’ start and finish times so that public transport is not crowded during peak travel times.
However, when services may only be able to cater for a quarter of their usual capacities, Ms Kidd said the hassle of altering work hours and the delays that will likely occur are almost certainly going to make employees think twice about wanting to return to work.
“Relevant matters to consider include the employee’s level of productivity at home versus in the workplace, whether the employee needs to be in the office for supervision and the need for the employee to interact with co-workers and others face to face,” she said.
Ultimately, if the employer wants the employee back in the workplace, then they can direct the employee to return.
“Any refusal by the employee to follow a reasonable direction could have disciplinary consequences,” Ms Kidd underlined.
She concluded: “The employer can determine what it requires of its employees after weighing up the pros and cons of allowing an employee to continue to work remotely, both as we emerge from lockdown and into the future.”