The Change in Rules

At a recent national cabinet meeting, the leaders of the states and territories agreed that from October 14 people infected with COVID-19 no longer need to isolate. The period of mandatory isolation after testing positive was recently reduced from 7 to 5 days. It will now be removed altogether.

Those who work in high-risk settings, such as aged care, disability care, Aboriginal healthcare and hospital care sectors, will not be able to return to work for 5 days after testing positive. Reflecting this, government support payments will continue for certain eligible employees in those sectors.

Notwithstanding the removal of the obligatory isolation period, the official health advice for people who test positive and have symptoms is to work from home and avoid attending the workplace.

The removal of the mandatory isolation period raises the prospect of employees attending work while infected, even if they are displaying symptoms. Not everyone will necessarily follow the official health advice. Employers need to consider and address this possibility.

As noted above, for employers in high-risk environments dealing with the elderly, sick or vulnerable, the consideration will be relatively straightforward as COVID-19 positive employees are prohibited from returning to work for 5 days. Those who attempt to do so should be directed to go home immediately.

Soldier On?

What about employers in other environments? While the famous slogan of one brand of medication, 'Soldier On', is now largely regarded as a misguided message to workers who are unwell, some might still see it as a badge of honour and turn up to work even if infected with COVID-19 and symptomatic. What can employers do in such situations?

While much depends on the circumstances of the specific workplace, and the risks associated with COVID-19 transmission and infection in that workplace, there are some general observations that can be made.

What Can Employers Do?

As with mandatory vaccination, it is open to employers to adopt policies that go beyond those prescribed by government. Employers have an obligation to maintain a safe workplace, including addressing risks to health and safety (such as COVID-19 transmission and infection). While affected employees might argue they can attend work because the government does not prevent it, that is not the full story. Employers can set their own rules, although there might be challenges arising from the effective application and enforcement of such rules. Given the changes in mandatory isolation are imminent, it is timely for employers to consider the approach they will adopt.

Where an employee is COVID-19 positive and displaying symptoms turns up to work, employers have a strong basis to direct the employee to go home. Where the employee can work from home, they could then be directed to do so and to not return to the workplace until they are, at the very least, asymptomatic.

The situation becomes more difficult where the work ordinarily done by the employee cannot be performed at home. The employee can be directed to leave the workplace and go home, but the thorny question of payment for the day then arises. If the employee has personal leave available they should be encouraged to take it for the day and subsequent days they are affected. They cannot validly be directed to do so, nor can an employer 'put' the employee on personal leave (contrary to popular belief). Where the employee refuses to take a personal leave day, or has no leave available to them, then the employer has a tough choice to make as to whether they pay the employee for the day, or assert that the employee was not fit for work (and therefore 'willing' but not 'ready' and 'able') on that day and therefore not entitled to payment. To not pay is a big call - it could arguably lead to an employer repudiating the employment contract leading to constructive dismissal. It is a step to be taken on the basis of fully considered advice.

Where an employee is COVID-19 positive but asymptomatic, the same direction to leave the workplace could be issued. Where the employee can work from home, they could be directed to do so. If a positive but asymptomatic employee can't work from home and either refuses to take personal leave or has no such leave available, the argument an employer does not need to pay them will be weaker than if they are symptomatic. An alternative might be to manage positive but asymptomatic employees by separating them from others (physical distancing) or requiring them to wear masks, reducing the risk they might infect others.

Planning Prevents Problems

The time for employers to reflect upon this issue is now, before the implementation of the change in isolation rules. Once the employer has decided its position on positive employees attending work (both symptomatic and asymptomatic), it should make employees aware of that position and consider promulgating it in a policy. The terms of any such policy should be informed by the applicable legal principles and leave enough flexibility for the employer to fairly and sensibly deal with the circumstances of each case.

Finally, there are also going to be employees with health conditions or other vulnerabilities who will not want positive COVID-19 employees (even those who are asymptomatic) in the workplace. While the genuinely held views of employees should almost always be respected and considered, ultimately the way in which COVID-19 positive employees in the workplace should be dealt with by an employer is primarily a question to be determined by an objective assessment of the health and safety risk they pose. While some employees might be cavalier about attending work with COVID-19 symptoms, at the other extreme some employees are wanting employers to treat the risks posed by the pandemic as if it was still pre-vaccine 2020, rather than highly vaccinated 2022. The relaxation of the isolation requirements by the government reflects the evolution of the pandemic. Employers are entitled (indeed required) to adapt their approach to the ever-changing situation.

For further information please contact:

Michael Byrnes, Partner
Phone: tel:+61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.