For many small businesses hit hard by COVID-19, the virus and its associated shutdowns could spell a pause in or the end of their enterprise. 

During these difficult times, businesses are experiencing rapid shutdowns on an unprecedented scale, all while trying to maintain their duty to provide a safe working environment for their staff.  

To help you navigate these issues, this article will cover some of the key things employers should be thinking about when managing their employees during COVID-19. 

Just a heads up: we’ll only be looking at rules for permanent staff in this article, and won’t be covering the position of contractors and casuals . 

Can I Make My Staff Take Leave Even If They Don’t Want To?

To cope with this crisis, many businesses are considering making their staff take leave. Perhaps they’re doing this to protect the health of their staff and the broader community. But, for many businesses, making staff take leave could be a measure taken to ensure the long term survival of their enterprise. 

This has left lots of employees across Australia in a distressing limbo. They’re unsure as to whether they’ll be forced to take leave and whether such leave will be paid.  

So, can you make your staff take leave if they don’t want to? 

This depends on your particular circumstances but, generally, you can’t force employees to take leave. However, depending on the terms of your employment contracts, there may be certain scenarios in which you can require that employees take leave (for example, if you’re shutting down over the Christmas break and don’t need staff working during that period).

In terms of COVID-19, if your business qualifies for the JobKeeper scheme, you’re able to request that employees take paid annual leave. Under these guidelines, your employees can’t ‘unreasonably refuse’ this request. Importantly, though, you can’t ask an employee to take leave if it would leave them with less than two weeks of annual leave saved up.  

Even though these legal measures have been introduced to allow you to request that employees take leave, it is often best to approach situations like this from a more practical – rather than legal – standpoint. While it’s important to be aware of your legal entitlements, these are unprecedented times, and you’ll likely find your staff are understanding of your situation. They may be willing to work with you on a solution to protect both their jobs and your enterprise (particularly if you’re a small business).   

So, where possible, try to negotiate leave individually with employees. Have open conversations with your staff about the position your business is in and get an idea of what leave they might be willing to take. 

This cooperative approach will probably lead to more fruitful outcomes than forcing employees to take leave without consulting them first, just because government directives said you could! After all, once the dust surrounding COVID-19 has settled, you’ll want to be left with a positive workplace culture where employees feel their needs have been recognised and respected. 

What Happens If My Employee Is Placed In Enforced Quarantine? 

Your employee may have had to quarantine themselves because of a government order — for example, if they’ve recently returned from overseas or had close contact with someone diagnosed with COVID-19. To manage this, you may be exploring their leave options.

If your employee is not sick and is willing and able to work, you’ll need to consider whether they can perform their duties from home. If the nature of their job means they cannot work from home, they may need to take leave.  

If your employee has any paid leave entitlements (e.g. annual leave or personal leave), they can use this first before taking unpaid leave. 

What If My Employee Has Used Up All Their Leave Entitlements And Still Needs To Take Leave? 

If it’s an option your business can afford, you could explore giving your employee negative paid leave if you’re facing this scenario. 

Negative paid leave is when an employer allows an employee to take more leave than they have accrued, under the expectation that the employee will eventually accrue that leave when they are able. You can put a limit on the amount of negative leave you offer.

What If My Employee Tests Positive For COVID-19? 

If your employee tests positive for COVID-19, they are entitled to take sick leave under their normal entitlements. They may also take sick leave if they are caring for someone diagnosed with COVID-19.

You should be proactive in communicating with your staff during this process, particularly if the affected employee has been in contact with other members of staff. In this case, you should consider making arrangements for your staff to work from home. 

Do My Employees Have To Work From Home? 

As an employer, you have a duty of care to your staff to ensure they are safe at work. This duty should take primacy over everything else. 

Currently in Australia, there are restrictions stipulating a maximum of gatherings of two people, with strong advice to stay at home as much as possible.  

Making staff attend a workplace when they are able to do the same job from home is unnecessarily putting your staff and the community at risk. 

Soon, there will be changes made to over a hundred Modern Awards — some of which will be aimed at making working from home possible. But, in the meantime, it’s best practice to ensure your employees are working from home unless it absolutely isn’t a plausible option. 

What Restrictions I Can Place On My Staff? Can I Force Them To Stay At Home?

Employers are able to give what is known as ‘lawful and reasonable direction’ to employees, and employees have a duty to comply with this direction. 

This direction must be lawful, reasonable and relevant to the workplace. Generally, you are not able to direct what your staff do in their private lives after work hours, unless there is a relevant connection to your workplace. 

This means that you cannot force your staff to follow social distancing guidelines in their private lives. But, during work hours, employees must follow any reasonable directions you’ve put in place to protect the health and safety of your staff.  

Depending on your workplace policies and employment contracts, directing your staff that they must not travel could be outside the scope of what you can reasonably direct your employees to do. 

However, it’s important to note that the government is currently recommending that Australians avoid all non-essential domestic travel and all overseas travel has been banned. In the unlikely event that your employee is considering travel during this time, you can point them towards these guidelines. 

What If I Can’t Afford To Pay My Employees?

If your business is experiencing cash flow problems, you may be considering standing down your staff or making redundancies.

Redundancy is a delicate process and it’s essential you get it right. We’ve put together an article here that outlines the steps you should follow in the redundancy process. 

Stand downs are another option you may be considering right now. A stand down occurs when an employee can’t do their work for reasons outside of the employer’s control, and this may apply to Coronavirus-related shutdowns. Check out Fair Work’s guide to stand downs to learn more. 

In Summary 

Undoubtedly, as a business owner, there’s a lot on your mind right now. But it’s important you stay on top of the changing laws relating to employees, and explore any options that could protect your business.

Wherever it’s practically possible, you should be allowing your employees to work from home. You should also be examining whether leave options are open to your employees. 

This is a difficult time for both employers and employees, so maintaining open and clear communication with your staff is crucial. This will give your employees certainty about their situation, ensuring that things go as smoothly as they can right now. 

As the laws and government guidelines relating to Coronavirus are changing frequently, we recommend speaking to a lawyer to properly understand your obligations to your employees. You can reach our friendly team on 1800 730 617 or at team@sprintlaw.com.au. 

Also, be sure to monitor our Coronavirus resource page where we’ll be sharing the latest news and developments as they come in. 

Editor’s note: The information in this article is correct as of 14 April 2020. With the legal landscape surrounding Coronavirus changing so rapidly, we recommend speaking with a lawyer to fully understand your options during this time. 

About Sprintlaw

Sprintlaw is a new type of law firm that operates completely online and on a fixed-fee basis. We’re on a mission to make quality legal services faster, simpler and more affordable for small business owners and entrepreneurs.

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