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.
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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.