Advice vs orders: 2 things employers must remember as COVID restrictions ease


Governments are loosening restrictions, but employers must be careful they don’t try to illegally tighten them.

It feels like Australia is in control of its destiny. 

Every news site and media outlet is pumping out stories about “lifting lockdown” and “returning to the workplace”. But they’re usually alongside scarier sounding articles about how “a second wave is coming”. 

It’s hard to know what to feel. Hopeful but cautious, perhaps? 

The lifting of some restrictions has felt good. However, we must remain vigilant and take care that we don’t undo everything we’ve done to flatten the curve in the first place. 

For employers, this is a tricky tightrope to walk. They have to create a workplace safe from a threat that they cannot see, a threat which increases based on certain human behaviour. Importantly, they must do so while knowing where the lines between staff work and private lives lie.

There are two important areas where this is likely to come up in the coming days and weeks: guidelines around safe behaviour and downloading the COVIDSafe app.

Don’t overstep employer powers

We may have spent months following government orders to stay put and not touch anything but employers do not have those same powers. 

“As a rule of thumb, employers cannot interfere with the private life of their employees unless there is a clear impact on the employment relationship,” says Georgie Chapman, workplace relations and safety lawyer and partner at HR Legal. 

“A good example is, when the Grand Prix was still going ahead we were getting a lot of calls from clients asking, ‘Can I tell my staff not to go to the Grand Prix?’ And at that time the state government was still saying it was going ahead. So you couldn’t turn around and tell your staff they can’t go.”

A lot of leaders will be worried about the possibility of an outbreak in their workforce, and so want to tell their employees to limit contact with others until a vaccine is found, but that’s not legal. If the government is allowing people to gather in groups of 10, or even 100, your feeling on whether that’s safe is irrelevant. You cannot stop employees living their lives as they see fit. 

However, as Chapman says, you can encourage safe behaviour within the workplace and hope staff practise the same in their private lives. 

“It’s important for employers to continue to communicate as conditions change. Firstly they should be establishing what the scenario is at work. So explaining what they need to be doing if they’re presenting at the workplace, what measures are there to keep everyone safe, and encouraging everyone to continue observing good hygiene practices and physical distancing.”

Chapman says it’s best to keep providing staff with information and ensure they’re up to date with whatever the current regulations are in their state. 

“So you can say to your staff, ‘In terms of recent changes to restrictions, we suggest you familiarise yourself with what you can be doing outside of work and, regardless of whether you’re at work or in your own time, we encourage you all to follow the government directions and exercise common sense. And of course, if you are unwell follow please follow the government recommendations to self-isolate and get yourself tested.’

“I think it’s just about issuing those gentle reminders around good hygiene and not interacting with others if you’re unwell.”

The app is opt-in

The federal government’s COVIDSafe app has caused a debate around privacy and surveillance. People are questioning the app’s usefulness and whether or not people can be compelled to download it. 

For employers, the answer is quite simply no.

The Commonwealth’s Biosecurity Act 2015 outlines that “a person must not: (a)  refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or b)  take adverse action (within the meaning of the Fair Work Act 2009) against another person” if they refuse to download the COVIDSafe app. 

Chapman says you can encourage employees to download it, but that is as far as you can go. 

“You can present all the information around it, you can say ‘tracing is really important to fight the disease’, but the legislation has made it very clear that you cannot insist employees download the app and you cannot take adverse reaction against them if they don’t.”

The legal protections for those choosing not to download COVIDSafe extend to physical workplaces. A person cannot stop someone from entering a premises if they don’t have the app. 

“Not allowing someone to work, or enter the workplace because they won’t download the app will amount to adverse action by the employer.”

It’s also important for employers to be aware of any actions from employees against another employee due to the use of the app, says Chapman. 

The government has positioned the app as a way out of lockdown. There has been strong messaging that downloading COVIDSafe will mean restrictions can be lifted earlier. Because of this, some employees could be upset to learn their colleagues have refused to download it. Other employees will no doubt feel strongly the app encroaches on privacy and shouldn’t be downloaded. If employees choose to act on these feelings, this is an issue for employers.

Chapman says if a staff member is being bullied or excluded because they don’t want to use the app that could amount to a legal problem, even adverse action in certain circumstances. So employers should remind all staff that downloading COVIDSafe is a personal choice. 

Working our way to a life free of COVID-19 is going to be difficult. We need to work together but we also need to respect that there are some things outside of an employer’s control. Often they can encourage, but not command.


Learning to find calmness amid the chaos of COVID-19 is a valuable skill that mindfulness expert Charlotte Thaarup will share in an online AHRI webinar on the 14th of May. Secure your spot to learn how to find your inner anchor of calm. This webinar is free for AHRI members.


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John M
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John M

Good article – the fact that you cannot force another person to download the app does not appear to have been widely publicised and the draft legislation is very clear on this.

Jodie
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Jodie

My question is around potentially being able to make employees have a flu injection before returning to work (ie: football issues at present). Wondering if this becomes an issue in the future, will this be the same case as the app, can encourage (ie: by paying for it and promoting etc) but not say “no jab no work” as I am starting to hear?

Andrea
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Andrea

The new legislation will make it crystal clear that you can’t force someone to download the app – however whether employers and companies pay attention to this will be something to watch!
Suggest it will be good practice to let employees make an informed decision.
The approach suggested above of employees exercising the same hygiene measures at work and at home – it washing hands, staying home if sick etc – seems like a common sense take.

Sharlene
Guest
Sharlene

Jodie. I had a friend who’s employer required all staff to have certain vaccine’s and she could not have them for health reasons, and she submitted the refusal in writing and though they tried to argue that point and make her have them, it ended up that they could not force her to have these. I cannot have the flu vaccine (on doctor’s advice) because I have an adverse reaction and it makes me very sick, so I would have to refuse having the injection – imagine if my employer then tricked me into having it and I ended up… Read more »

Ciaran Strachan
Guest
Ciaran Strachan

Legislative amendment passed on 14 May 20 that makes it an offence for an employer to require and employee or prospective employee to download and use the COVIDSafe app as a condition of employment. The Fair Work Commission stated in a release that an employer will also contravene the general protections provisions of the FWA if it takes adverse action against an employee or prospective employee for not downloading or using the app, specifically 94H(2). The legislative change is known as the Privacy Amendment (Public Health Contact Information) Bill 2020. A copy of the Bill can be found here: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6556… Read more »

More on HRM

Advice vs orders: 2 things employers must remember as COVID restrictions ease


Governments are loosening restrictions, but employers must be careful they don’t try to illegally tighten them.

It feels like Australia is in control of its destiny. 

Every news site and media outlet is pumping out stories about “lifting lockdown” and “returning to the workplace”. But they’re usually alongside scarier sounding articles about how “a second wave is coming”. 

It’s hard to know what to feel. Hopeful but cautious, perhaps? 

The lifting of some restrictions has felt good. However, we must remain vigilant and take care that we don’t undo everything we’ve done to flatten the curve in the first place. 

For employers, this is a tricky tightrope to walk. They have to create a workplace safe from a threat that they cannot see, a threat which increases based on certain human behaviour. Importantly, they must do so while knowing where the lines between staff work and private lives lie.

There are two important areas where this is likely to come up in the coming days and weeks: guidelines around safe behaviour and downloading the COVIDSafe app.

Don’t overstep employer powers

We may have spent months following government orders to stay put and not touch anything but employers do not have those same powers. 

“As a rule of thumb, employers cannot interfere with the private life of their employees unless there is a clear impact on the employment relationship,” says Georgie Chapman, workplace relations and safety lawyer and partner at HR Legal. 

“A good example is, when the Grand Prix was still going ahead we were getting a lot of calls from clients asking, ‘Can I tell my staff not to go to the Grand Prix?’ And at that time the state government was still saying it was going ahead. So you couldn’t turn around and tell your staff they can’t go.”

A lot of leaders will be worried about the possibility of an outbreak in their workforce, and so want to tell their employees to limit contact with others until a vaccine is found, but that’s not legal. If the government is allowing people to gather in groups of 10, or even 100, your feeling on whether that’s safe is irrelevant. You cannot stop employees living their lives as they see fit. 

However, as Chapman says, you can encourage safe behaviour within the workplace and hope staff practise the same in their private lives. 

“It’s important for employers to continue to communicate as conditions change. Firstly they should be establishing what the scenario is at work. So explaining what they need to be doing if they’re presenting at the workplace, what measures are there to keep everyone safe, and encouraging everyone to continue observing good hygiene practices and physical distancing.”

Chapman says it’s best to keep providing staff with information and ensure they’re up to date with whatever the current regulations are in their state. 

“So you can say to your staff, ‘In terms of recent changes to restrictions, we suggest you familiarise yourself with what you can be doing outside of work and, regardless of whether you’re at work or in your own time, we encourage you all to follow the government directions and exercise common sense. And of course, if you are unwell follow please follow the government recommendations to self-isolate and get yourself tested.’

“I think it’s just about issuing those gentle reminders around good hygiene and not interacting with others if you’re unwell.”

The app is opt-in

The federal government’s COVIDSafe app has caused a debate around privacy and surveillance. People are questioning the app’s usefulness and whether or not people can be compelled to download it. 

For employers, the answer is quite simply no.

The Commonwealth’s Biosecurity Act 2015 outlines that “a person must not: (a)  refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or b)  take adverse action (within the meaning of the Fair Work Act 2009) against another person” if they refuse to download the COVIDSafe app. 

Chapman says you can encourage employees to download it, but that is as far as you can go. 

“You can present all the information around it, you can say ‘tracing is really important to fight the disease’, but the legislation has made it very clear that you cannot insist employees download the app and you cannot take adverse reaction against them if they don’t.”

The legal protections for those choosing not to download COVIDSafe extend to physical workplaces. A person cannot stop someone from entering a premises if they don’t have the app. 

“Not allowing someone to work, or enter the workplace because they won’t download the app will amount to adverse action by the employer.”

It’s also important for employers to be aware of any actions from employees against another employee due to the use of the app, says Chapman. 

The government has positioned the app as a way out of lockdown. There has been strong messaging that downloading COVIDSafe will mean restrictions can be lifted earlier. Because of this, some employees could be upset to learn their colleagues have refused to download it. Other employees will no doubt feel strongly the app encroaches on privacy and shouldn’t be downloaded. If employees choose to act on these feelings, this is an issue for employers.

Chapman says if a staff member is being bullied or excluded because they don’t want to use the app that could amount to a legal problem, even adverse action in certain circumstances. So employers should remind all staff that downloading COVIDSafe is a personal choice. 

Working our way to a life free of COVID-19 is going to be difficult. We need to work together but we also need to respect that there are some things outside of an employer’s control. Often they can encourage, but not command.


Learning to find calmness amid the chaos of COVID-19 is a valuable skill that mindfulness expert Charlotte Thaarup will share in an online AHRI webinar on the 14th of May. Secure your spot to learn how to find your inner anchor of calm. This webinar is free for AHRI members.


5
Leave a reply

avatar
100000
  Subscribe to receive comments  
Notify me of
John M
Guest
John M

Good article – the fact that you cannot force another person to download the app does not appear to have been widely publicised and the draft legislation is very clear on this.

Jodie
Guest
Jodie

My question is around potentially being able to make employees have a flu injection before returning to work (ie: football issues at present). Wondering if this becomes an issue in the future, will this be the same case as the app, can encourage (ie: by paying for it and promoting etc) but not say “no jab no work” as I am starting to hear?

Andrea
Guest
Andrea

The new legislation will make it crystal clear that you can’t force someone to download the app – however whether employers and companies pay attention to this will be something to watch!
Suggest it will be good practice to let employees make an informed decision.
The approach suggested above of employees exercising the same hygiene measures at work and at home – it washing hands, staying home if sick etc – seems like a common sense take.

Sharlene
Guest
Sharlene

Jodie. I had a friend who’s employer required all staff to have certain vaccine’s and she could not have them for health reasons, and she submitted the refusal in writing and though they tried to argue that point and make her have them, it ended up that they could not force her to have these. I cannot have the flu vaccine (on doctor’s advice) because I have an adverse reaction and it makes me very sick, so I would have to refuse having the injection – imagine if my employer then tricked me into having it and I ended up… Read more »

Ciaran Strachan
Guest
Ciaran Strachan

Legislative amendment passed on 14 May 20 that makes it an offence for an employer to require and employee or prospective employee to download and use the COVIDSafe app as a condition of employment. The Fair Work Commission stated in a release that an employer will also contravene the general protections provisions of the FWA if it takes adverse action against an employee or prospective employee for not downloading or using the app, specifically 94H(2). The legislative change is known as the Privacy Amendment (Public Health Contact Information) Bill 2020. A copy of the Bill can be found here: https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6556… Read more »

More on HRM