Not-for-profit Law
Legal help for community organisations

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Employers have a duty to provide a safe and hazard-free workplace for their staff and volunteers. 

Refer your employees and volunteers to the Department of Health's guidelines on good hygiene to protect against infection and prevent the virus from spreading. Also, refer to the Department's fact sheet that includes information on social distancing in the workplace. Your staff should inform you of any overseas and intestate travel. If someone is returning from self-isolation, quarantine or carer’s leave, employers may insist on medical clearance before allowing employees to return to work.

How do I manage my employees’ absences and leave entitlements in a time of crisis?

If you haven’t already done so, prepare a policy for managing coronavirus-related staff absences. Your policy should cover the scenarios you may face, such as:

  • an employee infected with COVID-19
  • an employee caring for someone infected with COVID-19
  • an employee required to care for another who is not infected (for example, children)
  • an employee required to self-isolate because they have travelled to a country with cases or has been in contact with someone who has or may have been infected with COVID-19

We have prepared a fact sheet that considers an employee's leave entitlements in these scenarios.

PDF icon Staffing Arrangements in a Health Crisis (Cth)

This fact sheet is based on an article prepared by Maddocks and published on their website.

See below for more information on managing permanent and casual employees and volunteers during a crisis.

Can we ask employees to work from home?

Yes, if an employee is capable of performing their duties from home, or reasonable alternative duties, an employer can direct them to work from home to comply with isolation or quarantine requirements related to COVID-19. If a casual employee can’t work from home, you may need to consider cancelling their shift (more on casual employees below).

What are reasonable alternative duties depends on the employee’s role, their capabilities and their seniority (among other factors). You will also need to check for any relevant terms in the employee’s employment contract or enterprise agreement about giving an employee alternative duties.

Must employees use their annual leave if they can’t work from home?

Under the law, leave is framed as an entitlement that employees receive, and employers don’t usually have much power to direct how employees take leave.

Normally, an employee asks for leave under the process set out in their contract of employment, the company policy, or the applicable modern award or enterprise agreement and the employer can only refuse the employee's request if it’s reasonable to do so.

In certain circumstances employers can compel employees to use annual leave. Subject to meeting the requirements in the Fair Work Act 2009 (Fair Work Act) and any applicable enterprise agreement, an employee can be directed to take annual leave:

  • during a period when the employer is temporarily shutting down or closing its operations or workplace. Employers usually rely on this during the Christmas and New Year period, or
  • when an employee has an excessive amount of accrued annual leave (generally, more than 8 weeks)

If an employer shuts down the whole or a part of its operations due to COVID-19, the employer may be able to direct employees to take annual leave. Employers may have this right under an enterprise agreement, but the enterprise agreement may place restrictions on this right.

For employees not covered by an enterprise agreement or award, the employer may direct the employee to take annual leave only if the direction is reasonable. What is reasonable will depend on the facts and circumstances relevant to each employee, including the amount of annual leave they have and the notice they are given of the direction. It’s unlikely that simply relying on the COVID-19 threat will, at this stage, make the direction reasonable.

Can employees be made to take personal leave?

If an employee is unwell, their employer should tell them not to attend work, and if necessary, see a doctor. The employee will be entitled to paid personal leave. If the employee doesn’t accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave to use, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.

In most circumstances, an employer can’t direct an employee to use personal leave if they aren’t sick. Personal leave is available to the employee when they are not fit for work due to a personal illness or injury (and carer’s leave is for when they need to care for or support someone who is ill or injured or who requires care or support due to an unexpected emergency).

If the employer has told the employee not to come to work as a precautionary measure, where the employee has not been diagnosed with any illness and is not showing symptoms, they can’t be forced to use their personal leave.

But, if an employer reasonably suspects an employee is unwell, they can direct the employee to have a medical examination and provide medical clearance before they return to work. This is part of an employer’s work health and safety responsibilities. But risks can arise if the employer’s direction is not reasonable (for example, if there is no sound basis for the suspicion).

What if an employee is a carer for someone who is unwell?

If an employee is a carer for someone who is unwell, they should take carer’s leave. Carer's leave comes out of the employee's personal leave balance. If the employee does not accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.

All employees, including casual employees, are entitled to 2 days of unpaid carer’s leave on each occasion they need to care for an unwell member of their family or household.

Can I stand down employees if there is no useful work for them to do?

A stand down isn't the same as a shutdown. Stand downs should only be used by an employer as a last resort because the bar for lawfully standing down employees without pay is very high. Essentially, a stand down will only become an option when the employee cannot be usefully employed.

Where flexible arrangements aren’t an option, the Fair Work Act allows an employer to stand down employees without pay during a period in which they cannot be usefully employed because of:

  • industrial action
  • a breakdown of machinery or equipment if the employer can’t reasonably be held responsible for the breakdown, or
  • a stoppage of work for any cause for which the employer can’t reasonably be held responsible.

Directing an employee who isn’t unwell not to attend work because of concerns about COVID-19 doesn’t meet stand down criteria (it’s not for a cause for which the employer can’t reasonably be held responsible).

However, there may be some circumstances where the stoppage of work by an employee due to COVID-19 is for a reason for which the employer can’t reasonably be held responsible. For example, if employees can’t perform their duties due to a quarantine ban on them entering a client or customer’s workplace.

The income-depriving consequences of a stand down is severe for employees and can expose the employer to liability for breach of contract and breach of the Fair Work Act. For this reason, stand downs should only take place in accordance with specific legal advice.

Finally, even if the legal criteria for a stand down without pay are met, the employer should still ask: ‘should I do this and, if so, for how long?’

What if I have to cancel casual employee shifts because of a COVID-19 outbreak?

In most cases, employers can cancel a casual employee’s shift, or even end their employment, for any reason with very little notice. This is because, unlike for permanent employees, employers are not under a legal obligation to make sure casual employees receive regular shifts.

However, there are compelling reasons why employers shouldn’t rush to cancel casual employees’ shifts, or not pay them, including:

  • Employees who have worked for one employer on a casual basis for over 1 year may be regarded as a long term casual employee. Long term casual employees who have a reasonable expectation to continue their employment with you are entitled to ask for flexible work arrangements and there may be good reason to consider this option (see below).
  • It’s unlawful to cancel a casual employee’s shifts for a discriminatory reason. A valid reason to cancel a casual employee’s shift is to ensure the health and safety of staff or service users. Cancelling a casual employee’s shift because you suspect, without any proper evidence, that the employee is more likely to spread COVID-19 because of their cultural background is not a valid reason.
  • Some organisations are paying casual employees even if their shifts are cancelled. This is because, if a casual employee is not guaranteed any income if they don’t work, they may be less likely to be honest with their employer about feeling unwell. Recognising this, some organisations are making discretionary leave payments to casuals to encourage them to stay home if they aren’t feeling well, without compromising their pay. This may also be done to encourage the casual employee to want to continue working for the employer.
  • As disruptive as COVID-19 is, organisations should do their best to adapt and persevere through these difficult months. As part of this, many organisations are encouraging employees, including casuals, to work from home. Casual employees may be able to perform their same responsibilities, or even different and more pressing tasks, from home. Adapting in this way may be beneficial for both the employee and the organisation.

How do I manage my volunteers’ safety during the COVID-19 crisis?

Community organisations’ responsibilities to their volunteers are set out in common and statutory law. Organisations have a responsibility to ensure the health and safety of their volunteers to the extent reasonably possible and they owe a duty of care to their volunteers. The outbreak of COVID-19 can be regarded as a foreseeable risk from which community groups are required to take reasonable steps to protect volunteers.

In addition, community organisations have a responsibility to take reasonable precautions to ensure the safety of people interacting with their volunteers. In each Australian jurisdiction, legislation sets out special protection for volunteers from personal liability for anything done, or not done, in good faith when performing community work for a community organisation. Accordingly, where a volunteer exposes another person, such as a client or service-user, to infection or harm, your organisation may be responsible.

As a result, your organisation should identify reasonable precautions that it can take.

The reasonable precautions you can take depend on a number of factors (some dynamic) including:

  • the nature of the volunteer’s responsibilities
  • the size and resources of the organisation
  • the nature of the workplace, particular vulnerabilities of your volunteers
  • particular vulnerabilities of your service-users
  • the current information about COVID-19, and
  • the guidelines and directions issued by government

Your community organisation may wish to consider taking the following reasonable precautions:

  • Develop a risk management plan - A risk management plan provides evidence of your consideration of safety laws, foreseeable risks and necessary reasonable action to ensure the safety of your volunteers and service-users.
  • Review your controls and test whether they remain effective - Consider having multiple controls in place, such as increased cleaning services, increased personal protective equipment (PPE) training for volunteers, suspension or cancellation of certain activities or reducing the number of workers, volunteers and service-users in the same location. Ask: ‘is it essential for all of these people to be present?’
  • Develop a pandemic or infectious diseases plan - Such a plan needs to be consistent with World Health Organisation (WHO) and Health Department information. Volunteer managers and other responsible people need to be aware of responsibilities that apply. List the measures you have in place to reduce the risk of infection (for example: more frequent washing of hands; using hand sanitizer; more frequent cleaning of desks, phones, staff microwave ovens and other office equipment; actions to take if a volunteer has, or may have, been exposed to a risk of contracting COVID-19; limiting the number of third party visitors to the premises).
  • Consider flexible volunteer arrangements - In certain circumstances volunteers may be able to perform their responsibilities from a flexible or remote location. Subject to health, safety and risk considerations, this may be a reasonable precaution.
  • Where necessary, cancel volunteers’ shifts - Depending on how the COVID-19 outbreak evolves, it may be necessary to stop all volunteer work at your organisation. If such a precaution is necessary, your communication should be clear and include all necessary information about further support your volunteers can receive. Service-users and other organisations may also need to be made aware of this precaution.
  • Consider what information you need to provide volunteers - What and how will you communicate with volunteers about their obligation to self-isolate and report to you a possible or likely risk of infection? What will you tell them if someone in their workplace has contracted, or is suspected of contracting the virus? Be mindful of privacy considerations.
  • Ask volunteers to get a medical clearance before returning to work - This should be asked of those volunteers who are in an ‘at risk’ category or who chose to self-isolate (for example, if they travelled overseas or were in close or regular contact with a person returning from overseas or who was diagnosed with COVID-19). 

Read our resources on employees and volunteers for more information about your obligations. Please contact us if these don't answer your specific query.

Last Updated: 25 March 2020

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On Demand Webinar: COVID-19 Employment issues for not-for-profits

We've created this FREE webinar to support community organisations that are affected by COVID-19. We'll cover leave entitlements for permanent employees, managing casual employees and ensuring the safety of volunteers.
https://www.nfplaw.org.au/covid-19-webinar-employment-issues-not-profits

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