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Employment in a COVID world

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Tim Dixon Special Counsel Linkedin

The way we work, engage with clients, and manage our employment obligations has changed forever as a result of the arrangements which became necessary in order for professional businesses to continue to operate during the COVID-19 pandemic in Australia.

As we approach 90% of eligible citizens having had at least one of two covid vaccinations nationally and the number of double-vaxxed people currently at about 75% nationally, there is hope that extended periods of lockdown are over and that businesses (and their employees) can return to some form of normality as far as their operations are concerned.  Importantly, it will be a new normality with many restrictions and requirements being both necessary and prudent to ensure workplace and community safety.

Here are 6 things to consider:

1. Vaccinations

Although the term “mandatory vaccination” has become the catchphrase, vaccination itself is certainly not mandatory.  Nevertheless, State governments are mandating requirements for businesses to operate and citizens to mingle.  The consequences for failing to observe those requirements result in substantial penalties.  Each State has its own level of restrictions and requirements which are continually evolving.  That means you should regularly check, be aware of, and implement those which apply to your business.  Victoria presently has the most onerous conditions and could be used as a benchmark for safe and prudent operation.

In professional services businesses, Victorian and NSW governments have mandated that, for employees to return to the office, they must have had at least one vaccination and the second scheduled.  Be aware of:

  • Records of employee vaccinations: In Victoria and NSW, employers are required to keep records of employee vaccination status. Where there is no record or the employee refuses to disclose, treat them as unvaccinated.  If false information is provided, it is likely to be an offence punishable at law and could be grounds for termination.
  • Compliance with mask wearing mandates, records of attendance of staff, clients and other visitors at the business premises. In some States, QR codes and vaccination certificates may be required.

Refusal to be vaccinated: This is the right of the employee; however, it is likely to preclude them from returning to work at your business premises.  As with all employment issues, it is important to take a collaborative and inclusive approach.  If working from home (or externally) is a reasonable option for both your business and the employee, you should consider and discuss that option with the employee.  Where that course is not actually feasible, there may be grounds for dismissal on the basis that the employee is unable to perform the required duties.  Tread very carefully and seek expert advice where this situation arises.

Remember that some employees may have legitimate exemptions from the vaccination mandates.

2. OH&S issues for remote employment

If employees are to work from home (or continue to do so) the employer still has an obligation to ensure that there is a safe system of work for them.  Although employers will not have the same power or ability to monitor the work environment for remote employees, it is important that proper enquiries are made (and records of responses kept) in relation to such things as suitable workspace (desk/table and chair), lighting, ventilation, heating and cooling, noise, electrical safety, walkways clear of tripping hazards and such things.

Employees working from home will still have rights under workers’ compensation and no-fault work injury schemes, however, these often contain rights for insurers (statutory or commercial) to recover from employers in the event that the employer has been negligent.  Asking the employee to verify the conditions in the remote environment will go a long way to mitigating liability.

Clearly, failing to enforce adequate covid protection measures which result in transmission of infection both in the business premises and the adjacent community will be likely to have devastating consequences for the business – in terms of potential liability to infected employees and generally in terms of liability to third parties, business interruption and reputation.

Where an employee has a legitimate exemption from a “vaccinated to attend work” mandate, very careful management of infection control, including ventilation and segregation, will be imperative.  Clearly, remote employment is the preferred alternative in such circumstances.

3. Confidentiality of vaccination records

Although health information is “sensitive information” and the employee’s consent is generally required for the gathering and retention of such information, where there is a public health directive (such as in Victoria) consent is not required.  Importantly, the Australian Privacy Principles (APPs) do not apply to health record maintained by a private sector employer (the situation is different for public sector employees).  Nevertheless, employers should be transparent as to the health records which are maintained and be scrupulous in recording, storing and maintaining confidentiality of health information.

4. Flexible working arrangements

Where an employee requests it, employers are required to consider whether, taking into account the reasonable requirements of the business, the employee should be allowed flexible working conditions.  In a work from home and post lockdown world this has become more prevalent and feasible.  Obviously, consideration of the actual (as opposed to preferred) requirements of the business will be paramount and a consultative approach with each individual employee should be adopted – although general guidelines can be specified.  Obviously, where an employee working from home could place additional burdens on those in the office, fairness is an important consideration.

Such things as productivity in and outside the workplace should now be able to be readily quantified.  Flexible arrangements may result in reduced employment costs, higher productivity, reduced personal leave and more contented employees – or may not!  Consideration must include the OH&S issues and whether there are adequate technical and support resources available to enable the particular employee work effectively.  Where flexible working arrangements are agreed with an employee, a consequent amendment should be made to the employment agreement and it might be time to review your employment agreement template.

5. Mental health

The employer’s obligation to provide a safe system of work includes an obligation for the work to not adversely affect the employee’s mental health.  Whilst it is a little easier for employers to monitor mental health in the workplace, it is much more difficult when the employee is working remotely.  It is advisable to at least enquire after the mental health of those employees from time to time and to engage in some strategies to encourage a sense of inclusion and comradeship for employees who might otherwise suffer from loneliness and/or become withdrawn.  As with the OH&S obligations referred to above, an effort to maintain and monitor the mental health of remote employees does not require close scrutiny, but it is advisable to at least check in with employees from time to time.  A strategy utilised by some employers is to pay for an independent counsellor to be available by telephone to all employees on a completely confidential basis, where the employer is not advised even of the employee’s name or nature of the consultation.

6. Termination and redundancy

Redundancy may not be any more prevalent in a post lockdown covid world.  Redundancy will generally only apply in circumstances where, following the termination, the duties of the position will not be performed by any person.  However, redundancy is a separate and extensive topic and so advice should be sought and a consultative process undertaken should redundancy be being considered.

Similarly, termination should be approached with great care to avoid an unfair dismissal claim at the Fair Work Commission.  Again, unless clear misconduct has occurred, advice should be sought as to the termination process.  Where an employment agreement provides unambiguously for the circumstances of termination, it should be followed closely.  It is imperative to be transparent and consultative about the basis for termination, the requirements of the business, to explain all expectations and, where appropriate, to allow a reasonable opportunity for an employee to improve.  This is also an extensive topic which can require great care, sensitivity and diligence if a mutually acceptable parting of the ways is to be achieved.

Going forward in the new employment world

Be flexible and recognise that some of the traditional ways in which workplaces have run has changed forever.  Appreciate the benefits which might be available to your business as well as your employees – but don’t accept or require one-sided or detrimental variations.  Understand that the fundamental obligations for employees’ workplace safety and wellbeing remain, but the approach to monitoring and addressing those obligations has expanded.   Be aware that reasonable actions in accordance with government mandates will not be discrimination and reasonable requirements for infection control or OH&S is also unlikely to constitute discrimination.

Our commercial lawyers can advise and assist in relation to COVID-related employment matters and all other issues which employers may have in relation to their businesses, employees, franchisees and contractors.

Author: Tim Dixon, Special Counsel