COVID-19: My employee refuses to come into work – now what?

HRD looks at the employer’s rights to direct an employee to come to work despite fears related to COVID-19

COVID-19: My employee refuses to come into work – now what?

There’s a common scenario many employers are experiencing right now.

The phone rings and it’s an employee who sounds rather worried. The employee tells you they don’t want to come to work due to fears around being exposed to COVID-19.

However, the employee doesn’t have the luxury of working from home and must catch public transport to work. Despite telling the employee that the business is taking all precautions it possibly can, nothing you say can soothe the employee’s worries.

As an employer, what are your legal rights in requesting an employee to come to work despite their fears related to COVID-19?

That’s the question posed by Dean Tyler, Senior Associate, Australian Business Lawyers & Advisors (ABLA).

“Legally, an employer can direct an employee to perform work so long as that direction is lawful and reasonable in the circumstances,” said Tyler.

“The ‘lawfulness’ of a direction does not depend upon the existence of a discernible, written rule of law supporting that very order or direction.

“This is because a direction given to an employee is lawful to the extent that it falls reasonably within the scope of the employee’s service, and the direction is not in direct conflict with a written law or rule.”

Tyler explained that whether a direction is reasonable will depend on many factors, including the nature of the workplace and industry, the work the employee performs as regulated by their contract of employment and job description, the application of any modern award or enterprise agreement and the established custom and practice in the workplace.

In particular, he said, it’s important that industrial instruments and contracts of employment are carefully reviewed.

“While these types of instruments do not create the employer’s rights to run their business, they do condition how those rights are to be exercised,” he said.

“Also, directing someone to do tasks entirely unrelated to their position description may not be reasonable without their agreement and could warrant a constructive dismissal.”

Can an employee insist the worker return?
As the employer, you must first ensure you’ve taken all reasonable steps to provide and maintain a safe working environment.

In other words, a workplace that is consistent with an employer’s duty under the relevant state WHS legislation. Tyler said that what constitutes reasonable steps will “depend on the individual workplace”.

However, such steps may include ensuring all personal protective equipment required is available to the employees, regularly disinfecting work areas, establishing and training staff in proper social distancing rules; and making hand sanitiser available to all staff.

READ MORE: COVID 19: How to work at home and stay sane

If you have taken all these steps and believe there is nothing more you could reasonably do to make the workplace safe, what happens if the employee is still saying no?

An employee’s fear may be quite understandable, and you should ask them some questions about why they feel uncomfortable to return to the workplace.

For example, they might have a pre-existing condition that makes them more susceptible to COVID-19 or puts them in a higher risk category if they do get COVID.

Tyler offered the example that directing a healthy 25-year-old employee to work in an office is likely to be more reasonable than directing a 60-year-old asthmatic to work in a hospital. 

“This is because COVID-19 does present as a greater threat to those with medical conditions, compromised immune systems, and individuals falling into the 60+ age range,” said Tyler

“What makes a direction lawful and reasonable rests on the facts and circumstances of each case, and the employee’s personal circumstances are relevant.”

READ MORE: Spinning a crisis into an opportunity

What happens if the employee is still refusing?
According to Tyler, if all the above steps have been undertaken, you believe you have lawful and reasonable grounds to direct an employee to work, but the employee still refuses to come to work, then you can proceed down the disciplinary path.

“Obviously, this is not a position an employer wants to find itself in, but it may be left with no other option,” said Tyler.

“Compliance with a lawful and reasonable direction is a key part of an employment contract.

“Refusing to carry out a reasonable and lawful instruction that is consistent with the employee's contract of employment can be grounds for termination for serious misconduct under the Fair Work Regulations, and usually grounds for termination under most contracts of employment.”

However, Tyler advises that before taking such action, make sure that you have done all you can to allay the employee’s fears, and explained to them that if they don’t comply, they are putting their employment in jeopardy. 

“You cannot remove the risk of unfair dismissal against your business,” said Tyler.

“However, as long as you are satisfied you have taken all of the above steps for legitimate non-discriminatory reasons, you will usually be best placed to mount a solid defence against a claim.”

Dean Tyler is a Senior Associate at Australian Business Lawyers & Advisors (ABLA)

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