Various issues arise for businesses when there are risks of widespread disease affecting the workplace, such as in a pandemic. The overarching requirement for a business is to meet its work health and safety duties, which requires it to ensure the health and safety of workers and other persons in the workplace.

In doing so, the business will need to direct and consult with its employees, consider discrimination and privacy issues (e.g., health information), implement appropriate hygiene and infection control measures, correctly accrue and pay employee leave entitlements, manage workplace stress and implement staff travel and isolation measures including remote working.

Depending on the duration of the spread of disease, business continuity requirements may require the scaling down of operations, stand downs and the implementation of redundancy programs.

Once the crisis has abated, there may be other issues to work through, including workers compensation claims, potential underpayment of entitlements and ongoing management of employees who face post-pandemic physical or mental hurdles in resuming their pre-pandemic working arrangements.

Work health and safety duties

In the context of widespread disease such as a pandemic (e.g., SARS, COVID-19, H1N1), the business must take steps to minimise the risk of exposure and spread of the disease to staff and other persons in the workplace.

Reasonable measures could include to:

• ensure that the workplace is clean and hygienic - conduct a deep-clean, regularly cleaning high-touch surfaces and provide additional hand sanitisers and wipes
• closely monitor ongoing government sources for current information and advice
• clearly communicate government imposed self-isolation/quarantine periods
• provide clear guidance on when staff should not attend work (i.e. which may include when unwell, showing disease symptoms and/or if a staff member is very concerned about the risk of being in the workplace)
• eliminate or minimise domestic and international travel
• review and communicate company policies (e.g., work health safety policy, flexible working policy, leave policies, infection control/hygiene policy, remote working, no face-to-face meetings)
• consult with other providers of labour (i.e. labour hire providers, independent contractors and supply chain services) regarding their management of their own workers
• conduct contingency planning regarding staff absences
• provide staff with access to support services such as employee assistance advice lines or counsellors

Businesses must communicate to staff about their duties to take reasonable care of their own health and safety and to not adversely affect the health and safety of other employees or persons in the workplace. For example, employees should be informed that they are duty-bound to:

• use hand sanitisers and wash hands with soap and water at regular intervals
• avoid contact with others if unwell (i.e. not shaking hands, wearing a face mask, not hugging, kissing or any other touching)
• cough or sneeze safely – using a tissue or crook of elbow but not hands
• immediately see a doctor or contact if unwell
• immediately inform the business if they have been isolated or they or any member of the household have the disease

A business may be justified in terminating a staff member’s employment or engagement if the staff member creates a significant health and safety risk, particularly where there is a failure to comply with health and safety directions. Was there a valid reason for the dismissal?

Directions to employees during periods of widespread disease

Employers have the right to direct employees about their work, including:

• tasks and duties
• how to perform work
• when they perform work
• where work is performed

Directions are likely to be lawful and reasonable if made to ensure compliance with laws (including work health and safety laws) and if the direction goes only so far as reasonably necessary. In determining the lawfulness or reasonableness of a direction, employers must also comply with the terms of applicable workplace instruments such as awards and enterprise agreements.

If an employee fails to comply with a lawful and reasonable direction, an employer may have a valid reason to dismiss the employee. However, employers must also provide procedural fairness otherwise employers may contravene unfair dismissal laws. Employers should also seek legal advice on their circumstances.

The ability of employers to lawfully regulate employees’ conduct outside work is more limited. However, where the ‘outside work’ direction is to ensure health and safety in the workplace or to promote the effective conduct of the business, then employers are likely to have more latitude, particularly in situations of pandemic or widespread disease within the community.

Issues around business continuity flow-on staffing effects

Significant disease outbreaks are likely to adversely impact business, which may lead to staff redundancies.

Prior to implementing redundancies, businesses could consider preliminary measures, including:

• management leading by example by foregoing salary and/or bonuses
• freezing recruitment
• cutting back or eliminating the use of contractors or labour hire workers (subject to the terms of the service agreements)
• roster changes (e.g., overtime prohibitions, reducing hours of work)
• redeploying employees who do not have work into areas of the business that have increased labour requirements
• standing down employees

Some of these measures will require employee consent, particularly measures that reduce hours/income. Where employees are award/agreement-covered or are on unpaid parental leave, employers must ensure that they consult with employees and their representatives.

Where it is necessary to implement redundancies, employers must comply with consultation requirements in industrial instruments, contracts of employment, policies or legislation and provide a fair process. Depending on eligibility, redundant employees may be entitled to redundancy pay. Employees will also receive termination payments, including for accrued unused leave entitlements and, if relevant, payments in lieu of notice. Industrial instruments often contain enhanced redundancy entitlements, as well as other benefits such as time off to look for a new job.

To read more, visit our free to access guidance note, Dealing with the impact of widespread disease on the workplace via the LexisNexis Practical Toolkit. To request a trial speak to your relationship manager or visit our website.