How should employers respond to COVID-19 now that isolation rules are being removed?


With the government announcing that people will no longer need to isolate after contracting COVID-19, this raises concerns about employees choosing to ‘soldier on’ and infect their colleagues as a result.

At a recent nation­al cab­i­net meet­ing, the lead­ers of the states and ter­ri­to­ries agreed that from 14 Octo­ber 2022 peo­ple infect­ed with COVID-19 no longer need to iso­late. 

The peri­od of manda­to­ry iso­la­tion after test­ing pos­i­tive was recent­ly reduced from seven to five days, but it will now be removed altogether. 

However, some rules will remain in place for those working in high-risk settings, such as aged care, dis­abil­i­ty care, Abo­rig­i­nal healthcare and hos­pi­tal sec­tors. These workers will not be able to return to work for five days after test­ing pos­i­tive. Reflect­ing this, gov­ern­ment sup­port pay­ments will con­tin­ue for 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, as it’s unlikely that everyone will follow suggested health advice. 

This means employers will need to consider their own internal policies and procedures around managing COVID-19-infected employees.

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

But what about other sectors?

What should HR do if employees choose to ‘soldier on’?

The famous slo­gan of a med­ica­tion brand, ​‘Sol­dier On’, is now large­ly regard­ed as a mis­guid­ed mes­sage to work­ers who are unwell. However, some may still see it as a badge of hon­our and turn up to work even if infect­ed with COVID-19 and symp­to­matic. We only have to look back at how certain employees acted when infected with a common cold or flu pre-pandemic to see this.

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, there are some gen­er­al obser­va­tions that can be made.

Employ­ers have an oblig­a­tion to main­tain a safe work­place, includ­ing address­ing risks to health and safe­ty. While affect­ed employ­ees might argue they can attend work because the gov­ern­ment does not pre­vent it, that is not the full sto­ry. 

“While affect­ed employ­ees might argue they can attend work because the gov­ern­ment does not pre­vent it, that is not the full sto­ry.” – Michael Byrnes, Partner, Swaab

As with manda­to­ry vac­ci­na­tion policies, employ­ers are allowed to adopt poli­cies that go beyond those pre­scribed by the gov­ern­ment. However, chal­lenges could arise 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.


Need to update your workplace’s policies and procedures but not sure where to start? AHRI’s short course is designed to equip you with the basics.


The payment question

However, 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. 

Read HRM’s guide on how to support employees who’ve run out of sick leave.

Choosing not to pay an employee is a big call and could introduce unnecessary risk. For example, it could arguably lead to an employ­er repu­di­at­ing the employ­ment con­tract, lead­ing to a constructive dismissal. This decision should be made on the basis of ful­ly con­sid­ered and professional 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.

Forward 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 risks. 

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.

Michael Byrnes is a Partner at Swaab law firm. A version of this article was first published on the Swaab website on 4 October and has been republished with permission. You can view the original here.

Subscribe to receive comments
Notify me of
guest

3 Comments
Inline Feedbacks
View all comments
Phillip McDonald
Phillip McDonald
1 year ago

Good article, but the comment that some people still want to treat Covid-19 as if it is still pre-vaccine 2020 misses three points, one of which is pointed to in the article but lightly dismissed. 1. Employees who have health conditions or other vulnerabilities that may exacerbate the impact of contracting Covid-19 have more than “genuinely held views”. They have real risks that need to be considered. Does this create a potential Workers Compensation liability for the employer? 2. I am fully vaccinated, but have a nonagenarian parent living in an Aged Care facility. I continue take more precautions than… Read more »

Judi Smith
Judi Smith
1 year ago

If a work colleague is selfish enough to come to the workplace infectious with Covid then I’d be the one walking out and expecting to be paid. I’ve seen whole offices go down with flu because of the selfishness of just one person. I’d expect my employer to show some authority to protect the majority. We all need a safe workplace.

More on HRM

How should employers respond to COVID-19 now that isolation rules are being removed?


With the government announcing that people will no longer need to isolate after contracting COVID-19, this raises concerns about employees choosing to ‘soldier on’ and infect their colleagues as a result.

At a recent nation­al cab­i­net meet­ing, the lead­ers of the states and ter­ri­to­ries agreed that from 14 Octo­ber 2022 peo­ple infect­ed with COVID-19 no longer need to iso­late. 

The peri­od of manda­to­ry iso­la­tion after test­ing pos­i­tive was recent­ly reduced from seven to five days, but it will now be removed altogether. 

However, some rules will remain in place for those working in high-risk settings, such as aged care, dis­abil­i­ty care, Abo­rig­i­nal healthcare and hos­pi­tal sec­tors. These workers will not be able to return to work for five days after test­ing pos­i­tive. Reflect­ing this, gov­ern­ment sup­port pay­ments will con­tin­ue for 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, as it’s unlikely that everyone will follow suggested health advice. 

This means employers will need to consider their own internal policies and procedures around managing COVID-19-infected employees.

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

But what about other sectors?

What should HR do if employees choose to ‘soldier on’?

The famous slo­gan of a med­ica­tion brand, ​‘Sol­dier On’, is now large­ly regard­ed as a mis­guid­ed mes­sage to work­ers who are unwell. However, some may still see it as a badge of hon­our and turn up to work even if infect­ed with COVID-19 and symp­to­matic. We only have to look back at how certain employees acted when infected with a common cold or flu pre-pandemic to see this.

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, there are some gen­er­al obser­va­tions that can be made.

Employ­ers have an oblig­a­tion to main­tain a safe work­place, includ­ing address­ing risks to health and safe­ty. While affect­ed employ­ees might argue they can attend work because the gov­ern­ment does not pre­vent it, that is not the full sto­ry. 

“While affect­ed employ­ees might argue they can attend work because the gov­ern­ment does not pre­vent it, that is not the full sto­ry.” – Michael Byrnes, Partner, Swaab

As with manda­to­ry vac­ci­na­tion policies, employ­ers are allowed to adopt poli­cies that go beyond those pre­scribed by the gov­ern­ment. However, chal­lenges could arise 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.


Need to update your workplace’s policies and procedures but not sure where to start? AHRI’s short course is designed to equip you with the basics.


The payment question

However, 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. 

Read HRM’s guide on how to support employees who’ve run out of sick leave.

Choosing not to pay an employee is a big call and could introduce unnecessary risk. For example, it could arguably lead to an employ­er repu­di­at­ing the employ­ment con­tract, lead­ing to a constructive dismissal. This decision should be made on the basis of ful­ly con­sid­ered and professional 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.

Forward 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 risks. 

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.

Michael Byrnes is a Partner at Swaab law firm. A version of this article was first published on the Swaab website on 4 October and has been republished with permission. You can view the original here.

Subscribe to receive comments
Notify me of
guest

3 Comments
Inline Feedbacks
View all comments
Phillip McDonald
Phillip McDonald
1 year ago

Good article, but the comment that some people still want to treat Covid-19 as if it is still pre-vaccine 2020 misses three points, one of which is pointed to in the article but lightly dismissed. 1. Employees who have health conditions or other vulnerabilities that may exacerbate the impact of contracting Covid-19 have more than “genuinely held views”. They have real risks that need to be considered. Does this create a potential Workers Compensation liability for the employer? 2. I am fully vaccinated, but have a nonagenarian parent living in an Aged Care facility. I continue take more precautions than… Read more »

Judi Smith
Judi Smith
1 year ago

If a work colleague is selfish enough to come to the workplace infectious with Covid then I’d be the one walking out and expecting to be paid. I’ve seen whole offices go down with flu because of the selfishness of just one person. I’d expect my employer to show some authority to protect the majority. We all need a safe workplace.

More on HRM