The new normal brings new challenges for employers – we answer the key questions
The federal government has imposed a two-week pause on the next stage of Australia’s reopening plan, as the Omicron variant continues to rear its head. However, with many keen to avoid another lockdown, employers should continue to prepare for the wealth of new challenges associated with the return to workplaces.
Here are some important considerations for employers when navigating their new normal.
When can I direct my employees to return to work?
Employers need to stay up to date with state and territory rules requiring employees to work from home where possible.
In the absence of a stay-at-home direction, employers can require their employees to return to the workplace or work their regular hours, “as long as the requirement is lawful and reasonable”.
However, the Fair Work Ombudsman recommends that employers continue exploring flexible work arrangements where possible, particularly while COVID-19 social distancing or vaccination requirements continue to apply.
What if my employee refuses to return to work?
“An employee can’t refuse an employer’s direction to perform work if the direction is reasonable and in line with their employer’s legal obligations,” the Fair Work Ombudsman explains.
However, employees may be permitted to refuse to return to work if they are reasonably concerned about their health and safety or for another legitimate reason.
The Fair Work Ombudsman recommends visiting SafeWork Australia or contacting the relevant local body for information and guidance on WH&S issues stemming from COVID-19.
Further, generally, employees cannot refuse to attend their workplace because a co-worker is not vaccinated against COVID-19.
“If an employee refuses to attend the workplace because a co-worker isn’t vaccinated, their employer can direct them to attend the workplace if the direction is lawful and reasonable. Whether a direction is lawful and reasonable depends on all the circumstances,” Fair Work explains.
Where employers are unsure whether their direction or an employee’s refusal is reasonable, they should consider seeking legal advice.
What if my employee is caring for a child?
“If an employee can’t return to the workplace because they need to care for a child whose school or childcare centre has closed, they should come to an arrangement with their employer,” the Fair Work Ombudsman advises.
Such an arrangement could include working from home or taking paid carer’s leave, annual leave, or long service leave.
“If an employee doesn’t come to an arrangement to work from home with their employer, or doesn’t use paid leave, then they are not entitled to be paid,” Fair Work cautions.
Do I need to consult my employees before introducing vaccination policies?
Before introducing or modifying any workplace policy, employers should consider their employees’ circumstances and whether they need to seek legal advice to fulfil their obligations.
“All awards and enterprise agreements have a consultation clause requiring employers to consult with employees and any representatives when an employer intends to implement significant workplace changes,” the Fair Work Ombudsman explains.
To learn more about who, when, and how employers should consult regarding workplace vaccination policies, Fair Work recommends reviewing any relevant award, agreement, or employment contract.
Can my employees take sick leave to get vaccinated?
Under the National Employment Standards, sick leave is only available where an employee is “unfit for work because they are ill or injured”.
Given this, employees typically cannot take sick leave at the time of receiving a COVID-19 vaccination. However, full-time and part-time employees can use paid sick leave if they cannot work due to temporary side effects spurred on by a recent vaccination.
Can I take disciplinary action if my employee refuses to get vaccinated?
According to the Fair Work Ombudsman, an employer may take disciplinary action if an employee’s refusal to be vaccinated breaches a specific law or a lawful and reasonable direction. However, whether or not disciplinary action is available will depend on the individual facts and circumstances.
Employers should consult the relevant enterprise or registered agreement, award, employment contract, workplace policy, or public health order to decide whether disciplinary action is appropriate. Further, Fair Work cautions that employers cannot typically “stand down” employees who refuse to be vaccinated.
“However, if a public health order prevents a particular employee from working because they haven’t met a requirement to get vaccinated, then the employer doesn’t have to pay the employee (unless the employer agrees to the employee taking paid annual or long service leave),” the Ombudsman explains.
Generally, employers should consider receiving legal advice before making decisions regarding disciplinary action or termination, to avoid breaching unfair dismissal provisions in the Fair Work Act.
