Australia is to emerge from its COVID-19 lockdown by way of the three-step framework for “a COVIDSafe Australia” announced by Prime Minister Scott Morrison on May 8. As we transition through the steps of the framework and businesses start to recommence their normal operations, employers will also start asking their employees to return to the workplace.
Steps one and two of the framework provide for people to “work from home if it works for you and your employer”, whereas step three contemplates that workers will return to the workplace.
But what does this mean in practice? At what point in time can the employer require their employees to physically return?
Many businesses cannot operate without employees being physically present at the premises. A cafe owner needs the barista at the coffee machine to make the coffee. A restaurant owner needs the chef in the kitchen to cook the food. A shop owner needs the shop assistant behind the register to sell goods. In cases such as these, it is clear the employer will need at least some of its workers to return when its doors reopen for business.
But in other workplaces, the timing of the return to the workplace may not be so clear, particularly where the business has put systems in place to allow its employees to perform their usual work from home.
Over the last few weeks, employees have become accustomed to the short commute to the home office, working in their slippers, and being available to receive their online grocery deliveries during the day — and they quite like it.
This may see some employers facing requests from employees to either delay their return to the workplace for as long as possible, or seek to work from home on a more permanent basis.
Some employers have already considered how the changes they have been forced to make in recent weeks might benefit them in the long-term and have flagged that certain members of their workforces will continue to work from home following the end of the pandemic. With fewer people in the office, there is the potential for cost savings in terms of commercial rent, cleaning, heating and cooling, and other office incidentals.
But in circumstances where the employer needs its employees back in the workplace, the first step will be to ensure a ‘COVIDSafe plan’ has been developed, taking into account the public health orders in place at the relevant time so as not to breach the relevant restrictions.
At present, this would require the COVIDSafe plan to include measures for physical distancing and, in some workplaces, the four-square-metre rule. As a result, the employer may need to relocate workspaces, or introduce teams of workers who attend the workplace in shifts, so fewer employees are present at any one time.
To ensure compliance with work health and safety laws, employers also need to ensure they provide and maintain a safe working environment. In the current circumstances, this will require employers to ensure that their COVIDSafe plan includes proper systems and processes for maintaining hygiene, conducting health monitoring and ensuring effective cleaning. It will also require employers to plan for incidences of COVID-19 in the workplace.
It is also prudent for employers to consider whether their employees’ travel to and from work will be affected by COVID-19 restrictions. For example, while public transport services remain affected by social distancing measures, it may be impractical for employees to travel at certain times of day. If the wait to get on the train (that can only have a quarter of its normal capacity), combined with the wait at the lift in the office building, adds an hour onto the employee’s journey, the employee may argue that is reason enough to stay at home and work. It then may become a question of productivity and the best use of time.
But if the workplace has the appropriate measures in place and the employee is able to travel to and from work without a great deal of disruption, it largely becomes a matter of employer discretion as to whether the employee can continue to perform their work from home.
Formal requests to work from home
Some categories of employees, such as those with school-age children or younger, a disability, or carer’s responsibilities, may submit a formal request to continue to perform some or all of their work from home pursuant to the provisions of the Fair Work Act.
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If such a request is made, the employer needs a legitimate business reason to refuse the request and, following the work-from-home measures that some employers have put in place for COVID-19 (particularly in terms of IT systems), many of the usual operational reasons for refusing a working-from-home request may no longer be available.
In assessing a formal request to work from home under the Fair Work Act, the employer should consider the employee’s level of productivity at home versus in the workplace, whether the employee needs to be in the office for supervision (either to provide supervision or be supervised themselves), and the need for the employee to interact with co-workers and others face-to-face.
Ultimately, unless the employee can make a formal request for flexible working arrangements under the Fair Work Act and the employer has no legitimate business grounds to refuse that request, or there are no adjustments that need to be made to accommodate a disability, the employer can direct an employee to return to the workplace.
Any refusal by the employee to follow a reasonable direction to return to the workplace could have disciplinary consequences. Of course, whether a direction is ‘reasonable’ in all the circumstances may need to be assessed on an individual basis, taking into account an employee’s health and safety, such as whether they are in a high-risk category for COVID-19.