Legal: Swine Flu - Business as usual?

by HCA24 Jun 2009

Extensive media exposure and the confirmed cases of swine flu in Australia have sparked debate among concerned employers about their ability to fulfil workplace health and safety obligations during a pandemic.

Can I direct employees not to attend work?
An employer may direct an employee not to attend work if there are reasonable grounds to believe the employee may have swine flu or any other illness which may affect the health and safety of other employees. The employee must however be paid for the period of any such absence.

How is the employee paid for time off?
As a general rule, an employer cannot require an employee to take personal sick leave if the employee has not shown any symptoms of illness. Such absences cannot be regarded as personal sick leave or otherwise offset against any of the employee's accrued leave entitlements if the employee has been directed by the employer not to attend work as a precautionary measure.

If on the other hand the employee demonstrates symptoms of illness and is unfit for work the employee may be directed to take personal sick leave.

Can i direct employees to work from different locations or perform different functions?
Whether an employer may direct an employee to perform different functions or work from different locations will depend on the flexibility of relevant workplace agreements, the requirements of the individual business, and the additional travel time which may be required for the employee. It is recommended employers take advice in these circumstances on a case by case basis.

Can i place restrictions on employees returning to work?
An employer could make an employee's return to work subject to a requirement that reasonable proof,  such as a medical certificate, confirming the employee is fit to work and stating there is no risk the employee is carrying on infectious illness which would affect the workplace.

If the employer suspects the employee is unfit for work, the employer may also require an employee to be medically examined (at the employer's expense) before their return to the workplace.

Can employees refuse to attend work?
The management of employees during a pandemic is further complicated where employees refuse to attend work because of fear caused by external factors such as media hype rather than genuine risk. In such circumstances employees should be reassured as to their health and safety at work and directed to carry on with business as usual. Employees will, however, be in a position to properly refuse work if they have 'reasonable grounds' to believe being at work will pose a risk to their health, safety or welfare.

Employers' responsibilities
In order to comply with their duties to employees, contractors and visitors under occupational breach and safety (OHS) laws employers must keep informed of government health warnings, undertake risk assessments and take measures to either eliminate, minimise or control risks to health and safety which may be identified by such assessments.

It is also recommended employers take proactive measures to limit the spread of illness. As a guide, some practical steps may include:

  • Ensuring ready access to washing facilities, antibacterial soap, hand sanitisers and workstation cleaners
  • ·Adequate ventilation in the workplace
  • Withdrawal of staff travel to virus affected regions
  • Prohibition of staff who have been in affected regions from returning to work until proper medical examination has taken place and medical clearance is obtained.

Guidelines for employers
As with all OHS and employment issues, any action taken should at all times be consistent with company policies and procedures.

If the company does not have documented procedures regarding management of infectious illnesses, one should be developed for inclusion into the company's OHS policy.

It is then imperative any issues which arise are dealt with quickly, effectively and consistently with such procedures. During times of pandemic, employers should:

  1. Access all relevant health information and conduct risk assessments on the potential impacts on the business.
  2. Develop and maintain communication channels with employees to ensure employees are consulted in relation to OHS issues and reassured as to their health, safety and welfare at work.
  3. Review possible risks and formalise any changes through usual Risk Management procedures including risk elimination, minimisation or control procedures.
  4. Frequently monitor policies and procedures and update if necessary.

About the author

Fay Calderone is a senior associate with MatthewsFolbigg Lawyers. For more information call: (02) 9806 7412 or e-mail: