Forced temperature tests and reneged employment offers: What employers can and can’t legally do during COVID-19

legal

McCullough Robertson Lawyers special counsel Lydia Daly.

As government restrictions continue to evolve throughout COVID-19, businesses are treading a delicate balance between keeping employees engaged and ensuring the survival of the business.

Below are seven commonly asked questions, myths and points of confusion. Let’s unpack each and ensure your business knows how to fulfil its legal obligations.

FALSE

I can force employees to take a pay cut or annual leave to see us through this rough patch.

Pay reductions and the taking of annual leave requires employee consent. In terms of annual leave, some enterprise agreements and modern awards may include specific requirements regarding annual leave.

It is important to note there are currently applications before the Fair Work Commission for variations to some modern awards to allow for an employer to direct the taking of annual leave. Businesses should always continue to continue to consult the relevant modern award.

Alternatively, if a business is registered for the JobKeeper scheme, it may give directions about reduced hours (or reach an agreement about the taking of annual leave) in relation to eligible employees — as long as the scheme requirements are met.

Outside of this, agreement with employees is the default position.

FALSE

I can make employees redundant while business is slow and re-hire when business picks back up.

If, after the COVID-19 crisis is resolved, an employer will still need an employee’s position, a redundancy is not ordinarily triggered.

However, if an employee cannot usefully be employed for a period of time, an employer may be able to stand down the employee.

To help manage the economic impact of COVID-19 employers should consider their eligibility for the JobKeeper scheme. When employers access the JobKeeper scheme, additional directions can be given in relation to the stand-down of employees.

TRUE

I can temperature-test employees to safeguard the health of my workforce.

Employers can issue a reasonable and lawful direction to employees to participate in temperature testing.

However, such a process should be adopted sensibly, based on the level of risk of each business.

In a high-risk context, such as aged care, such a requirement is more likely to be reasonable than in other business operations.

MAYBE

I can make staff travel to complete their regular work duties.

In most states, there are currently border lockdowns. So, travel depends on the restrictions imposed by relevant states and territories, where the person resides and if they are travelling interstate.

However, there are some exceptions to the restrictions. For example, workers who live in New South Wales but work in Queensland are permitted to cross the border if they have an entry pass.

Generally, before you require staff to travel, you should explore other options, such as video conferencing, teleconferencing and other use of technology to avoid the need for a person to physically travel.

TRUE

My staff cannot work from home, so we can continue to operate under social distancing requirements.

If work is continuing, the government’s advice on social distancing should be adhered to. Social distancing advice can be found here.

In a work environment, this typically includes things such as stopping the shaking of hands, considering cancelling non-essential meetings and regularly cleaning and disinfecting surfaces that many people may touch.

Work health and safety should remain an essential consideration, with employers considering how government advice interacts with their business and what sensible controls can be implemented to keep workers safe at work.

MAYBE

I signed a new employee contract, but now do not have work for them. Can I cancel their employment offer?

If you do not wish to proceed with the employment of an employee who has not yet commenced, you should carefully consult the terms of the employment contract.

An employer may be able to withdraw their offer or otherwise terminate pursuant to the contract.

Consultation with the prospective employee is key, as it may be that the parties are able to agree on a sensible deferral of the start date.

MAYBE

I do not need to share my business plans for COVID-19 with staff.

While there is no legal obligation to do so, engagement with workers during this time is absolutely essential, both for productivity and mental health. Where difficult decisions are taken, early engagement and transparent explanation can avoid disputes.

Employers should continue to provide their employees, wherever possible, with meaningful work that adheres to government restrictions.

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