Most Australian workers are engaged by small or medium sized businesses. As we return from summer holidays many of us are discovering that we are or may be carriers of the virus. Or our kids are. We are all rushing to find out if close proximity to loved ones has indeed infected us. We are on annual leave and in many cases, on the cusp of returning to the workplace. But what do business owners do in all this uncertainty where rapid tests are not available and PCR testing is taking 5-7 days to return a result?

In the latter half of 2021, most employers were focused on encouraging staff to get vaccinated (and now have a booster), and ensuring employment contracts and policies mandated this.  The challenge for employers to now turn their mind to is managing this current uncertainty about how to ensure a person is COVID-free and safe to return to the workplace (that is not their home).

Some businesses have already entrenched practices about regular testing of staff with Rapid Antigen Tests (RAT) where they have to be in a shared workplace or interact with third parties. These businesses will generally have their RAT suppliers secured. However such avenues and attendant costs are not viable for many.

The example of Tim Tran is a case in point. He owns a small stationery company, and his staff administer stationery orders and pack and deliver them. Most staff have been away, but now they are returning. Kelly works in the office and has called in to say that she was exposed on the weekend. She does not want to queue up for a PCR test as she has heard it will take several hours. Tim asks if she can work from home, but Kelly does not have a computer at home. When Tim asks her to go and pick one up from a colleague, Kelly responds that she does not wish to do that. One of Tim’s delivery drivers has also called in sick with symptoms of COVID-19. With a small workforce, two people absent for a possibly extended period of time can have a significant impact on business operations.  Furthermore, with the difficulty in getting timely test results, how can Tim be confident that employees are safe to return to the workplace?

Our current advice to employers is that they need to be thinking through a policy position now that can be communicated to staff to set out expectations. You should review the legalities of leave entitlements, keep on top of the public health orders and be ready to adapt to inevitable changes caused by the pandemic. Make sure you continue to conduct risk assessments to ensure you are meeting your work health and safety obligations when determining when it is safe for staff to return to the workplace, and in what capacity.

If your staff can work from home, they should be encouraged to do so, or alternatively directed to do so, as this current surge peaks.

Do they have their tools of trade at home? If so, that is easy to accommodate. If they don’t then it will be up to the employer to get them to the employee. If the employee still refuses to work, then this may be a basis to discuss with them whether they wish to take annual leave, or take leave without pay. Technically employees who are required to isolate due to possible exposure, or are awaiting test results, without any symptoms, are not sick, so not eligible for paid sick leave. Employers should consider what, if any, other leave may be available to their employees.

Staff should be required to get tested as soon as they can. They should be asked to declare any exposure, or signs of early illness and symptoms, as soon as they become aware of them. Sick employees are entitled to paid sick leave. Employers will need to consider whether they require sick leave certificates and look at any current policies, award, enterprise agreement and employment contract obligations they may have in place. Employers will also need to decide what will be required of employees to demonstrate they are fit to return to the workplace, which may be impacted by the public health orders in your state or territory.

The Fair Work Commission guidelines contain further relevant information to assist employers and employees:

This is also the time for employers to consider their business continuity arrangements. Are there any resources you can access if a significant proportion of your workforce is absent? Is it possible to pool resources with any similar businesses in your network? Have you set up contingency plans if your supply chain is similarly hit? Have you identified the triggers that might require you to scale down, or even temporarily cease your operations and how will this be communicated to staff, clients/customers and suppliers? In circumstances such as this, it is important to have considered your options, and the related legal issues, as soon as possible so you have a plan in place. This reduces the decisions that need to be made in the heat of the moment and reduces disruption and stress to you, employees and clients/customers.

We recommend employers and managers talk to their staff and keep communication channels open, and maintain trust in these challenging times. These situations are difficult for employers, but invidious for small and medium sized businesses looking to maintain operations, without having the additional burdens of sick staff, possible extraordinary drawdowns on leave, and the risk of legal action if they proceed to treat a staff member detrimentally because they need to take time off or they are sick.

For more information, please contact our Founding Partner, Sarah Rey.