Australia and New Zealand authorities are investigating a number of possible cases of swine flu. While we all hope that the threat will be contained, employers should now be actively considering their management plans and strategies for their workforce in the event of a pandemic.
Many will recall that in late 2005, the World Health Organisation's (WHO) emergency committee set the pandemic threat level for bird flu at three out of a possible six. The WHO emergency committee has raised the pandemic threat level for swine flu from phase four to five. Phases four to six are intended to clearly signal the need for response and mitigation efforts.
The most important thing businesses can do to prepare for a pandemic is have a business continuity plan in place. The plan should have an emphasis on continuity in the event of high absenteeism and interruptions to the supply of goods and services, which could result from the restriction of movement of people into and within Australia. Absenteeism could be as high as 30 to 50% at the peak of a pandemic. For some businesses, this level of absenteeism would be devastating, particularly in the essential service sector.
For those businesses not providing essential services, you should consider how you would manage if you were required to operate at a reduced level, and how you would manage large absences or even closing down your business temporarily. You should also consider strategies to ensure you are able to resume your normal business activities in a timely manner.
What employment obligations do I need to consider in a continuity plan?
There are a number of legal issues that arise that may confuse an employer's response to the management of this risk. Questions arise around workplace health and safety, equal opportunity, privacy and industrial relations.
Key questions for employers
Do employment laws apply during a pandemic?
How do I fulfil my workplace health and safety obligations to my employees in a pandemic?
Can I direct employees to attend or not to attend work?
Would I have to pay employees?
Can I direct employees to perform different functions or to work from another location?
Can employees refuse to attend work?
Do employment laws apply during a pandemic?
Yes, employment and health and safety laws, workplace laws, workplace agreements and employment contracts and policies still apply during a pandemic. However, the manner in which an employer meets those obligations may be different.
For example, the state and federal governments have the power to pass laws in response to the management of a pandemic. Each state and territory has emergency management legislation that provides powers and obligations for a pandemic. If these steps are taken they may override, modify or inform employers on how to meet their obligations under other laws.
How do I fulfil my workplace health and safety obligations to my employees in a pandemic?
Under the various workplace, health and safety laws throughout each state and territory, the primary obligation or 'duty' is to provide a workplace (or plant, substance or equipment) that is safe and without risks to employees and others. In a pandemic these obligations may require a different management response to 'business as usual'.
Government information must be carefully considered and where necessary communicated and acted upon. It is critical that employers keep informed and act when required to do so. Keeping informed on information published by the government authorities will help you determine whether your workplace is safe.
Can I direct employees to attend or not to attend work?
The circumstances may require you to direct employees to stay away from work. This may occur for a number of reasons, including a direction from government authorities or due to an inability to obtain supplies because of travel restrictions.
Employers will need to review their ability to implement stand downs under their industrial arrangements and employment contracts and policies. If a pandemic took hold it is likely there will be enforced closures.
Employers may also be able to direct individual employees not to attend work if they have reasonable grounds to believe an employee has the flu and may place the health and safety of other employees in the workplace at risk.
Would I have to pa y employees if they were directed not to attend work or if they did not attend?
The answer to this question will depend on your workplace agreements and the operation of section 691A of the Workplace Relations Act 1996 (WR Act). Section 691A of the WR Act allows employers to stand down employees without pay in certain circumstances including where a stoppage of work occurred for which the employer cannot reasonably be held responsible. (Section 526 of the Fair Work Act 2009 from 1 July 2009).
If stand down provisions are activated it is usual that no pay is required to be made. If employees did not attend due to illness or carer's responsibilities then of course employers will need to pay sick and carer's leave entitlements.
Can I direct employees to perform different functions or to work from another location?
Again, the answer to this question will reflect the flexibility in the workplace agreements. For some employers the answer to this will be yes. For others, they may first need to consult with a union or obtain employee approval. For many whether the employment contract is drafted with sufficient flexibility will be the major determining factor in how you can respond. In a pandemic it may be reasonable to expect increased flexibility where it can be utilised safely.
Can employees refuse to attend work?
Yes, but it will need to be a right properly exercised because of serious concerns over their safety, or because they are ill or have carer's responsibilities, for example:
- If employees believe on 'reasonable grounds' that being at work will expose them to an imminent risk to their health and safety, it is not industrial action to withhold labour if they did not unreasonably fail to comply with a direction to perform other work at another location that was safe and appropriate for the employee to perform. This situation will apply differently depending on the workplace (eg the risk at a medical facility may be different than that at a school or manufacturing facility).
- If an employee or someone they are caring for has the flu and they have personal or carer's leave entitlements.
- If they are unable to come to work because of the pandemic. For example, there is restricted transport, schools are closed or child care facilities restricted and their children require care, it is likely to be reasonable and would not be an abandonment of employment.
- If employees have annual leave entitlements the usual rules apply for the taking of such leave.
What can I do to prepare?
Employers should review their current business continuity processes, including crisis plans, disaster recovery, denial of access, loss of production, alternative management options (virtual, offshore, maintaining a reserve), communication strategies and travel policies. There are many issues to consider when planning. Some of the key issues businesses should consider when developing a continuity plan include:
- Identify essential business activities (and the core people and skills to keep them running), and ensuring that these are backed up with alternative arrangements, where possible.
- Identify the infrastructure and resources required for the organisation to continue operating at the minimum acceptable level.
- Develop mitigation strategies for business disruptions, including possible shortages of supplies, and developing contingency plans for continued operation.
- Ensure that relevant employees, customers and suppliers are aware of the contingency arrangements, and that the arrangements will work.
- Minimise illness in workers and including having infection control guidance as part of the plan.
Employers should also consider how to treat employees who are at home during a pandemic and how to inform staff. Especially consider procedures for sending staff home, personal and carer's leave, leave entitlements and arrangements to work from home.
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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.
