Where do employers stand if an employee refuses to come back to work? Can employers legally direct employees to return to work if they have safety concerns? The answer depends on the individual circumstance. In this blog, we explore the scenarios that make a concern reasonable and also circumstances where you may be able to push back.

What makes a concern genuine?

There are many situations where an employee’s concerns are valid:

• The employee is following advice by the Federal and State government or by a health authority
• The employee is at risk of serious infection as identified by the Department of Health (e.g. mature aged workers, vulnerable workers).
• The employee was exposed to coronavirus (e.g. they may have been in a hotspot or a family member was contracted)
• The employee has raised their concerns with the employer, but the employer has not acknowledged them
• The work involves some form of travel, and there isn’t enough information available on the risk of COVID exposure in that location or whether the location has a COVIDsafe plan.

Note: this is not an exhaustive list, but are the common scenarios.

What makes an employee’s concern unreasonable?

The employer may take disciplinary action for non-attendance if:

• The directive was lawful and deemed reasonable, and
• Attending work is COVIDsafe and would not expose anyone to the risk — i.e. employees, customers and contractors.

Employers can choose to pay the employee or treat the matter as paid (e.g. annual leave) or unpaid leave.

Note: Before taking any action, we strongly recommend checking the employee’s award or agreement. As every circumstance is different, if you are ever unsure, please contact us for advice.

The ‘fine print’ — limitations what employers can do

Workplace health and safety legislation requires employers to provide a safe and healthy working environment for all employees. This involves taking all reasonable steps to eliminate or minimise exposure to health and safety risks.

Employers must ensure they have a  COVIDSafe plan which includes proper systems for maintaining sufficient hygiene, health monitoring and cleaning. It also requires employers to plan for the possibility of COVID cases in the workplace.

Employees have the right to raise concerns or make a complaint if they feel the workplace is not COVIDSafe or they may be exposed to Coronavirus while travelling to and from work. This means an employer cannot take adverse action against an employee for raising a concern or complaint. This would be a breach in the general protection provisions of the Fair Work Act 2009 if an employer were to take disciplinary action.

Employers must remember that we are in a pandemic and the current climate is very stressful. With daily updates on coronavirus and information quickly becoming outdated, this means almost any health and safety concern raised by an employee is likely ‘reasonable.’ This means no action should be taken against an employee for raising it.

Recommendations

The recommended approach is to discuss the concerns with the employee and provide evidence that those concerns have been addressed. Show that the employer’s actions comply with the latest government or health authority directive.

To reassure concerned employees, an employer can also consider:

• Allowing employees to work from home or remotely where possible or taking a hybrid approach (a blend of remote and on-site work)
• Arranging transport for employees who normally use public transport
• Taking a flexible approach to leave entitlements

Even if you take the recommended approach above, disciplinary action including and up to dismissal is a very risky step to take. We recommend seeking advice from our team of workplace experts before making any decisions.

Download our free COVID-19 return to work checklist

Positive HR has put together a free checklist that is additional to and compliments your COVID-19 Safe Plan. This checklist will help support your business when the time comes to reintroduce your workforce.

Links to Government health resources

• Safe Work Australia – COVID-19 information for workplaces
• Department of Health – COVID-19 fact sheet for employers
• Department of Health – Guidance for people tested for COVID-19
• Health and safety in the workplace during coronavirus
• Going to work during coronavirus
• Quarantine & self-isolation: pay & leave options
• Protections at work