The advice from Australian Business Lawyers & Advisors is:
- It’s a requirement of any employment contract that employees are required to carry out their employment without endangering the safety of other persons.
- In order to be paid for their service, employees need to be “ready, willing and able” to work.
These principles will govern an employer’s approach to employees who are told to isolate in circumstances where testing is unavailable (or refused by the employee).
Two scenarios are likely to arise:
Scenario one: In some cases, an employee may have had levels of contact with persons exposed to Coronavirus which means the risk to safety presented by the employee’s presence at work is materially greater than other employees. By way of example, if an employee has just returned from mainland China or has been living with a person who has contracted Coronavirus, the employee will likely present significantly greater risks to the workforce than most other workers.
Scenario two: In other cases, an employee might have had a level of contact that causes an employer some anxiety but not material concern – by way of example, the employee’s child might have attended a school where there was a Coronavirus diagnosis or the employee may have returned from travel to an area designated by the Australian Government’s health advice as ‘moderate risk’. Whilst there is some risk associated with contact with the relevant employee, the risk might not be materially greater than that posed by other workers who have been to supermarkets, gone to a football match, etc.
In the first scenario, a level of debate is likely to arise. However, provided the employer can demonstrate the relevant employee poses a sufficiently material risk to health and safety that cannot be mitigated, there is a reasonable basis for the employer to contend that the employee must stay away from work on unpaid leave (or annual leave if requested) until such time as the material risk decreases.
In the second scenario, it is unlikely that an employer will have a legitimate basis to direct an employee to stay away from work without pay. Rather, if the employer is directing the employee to remain away from work, the employer will need to pay the employee for the relevant period.
Employers should consider supporting the national objective of quarantining potential infected citizens and suggest that employers explore all avenues to avoid loss of pay for those employees who do the right thing.