Do self-isolating employees still get paid?

While the official response from the Federal government is regularly updated as the coronavirus outbreak continues, employers remain unsure of their obligations in managing employees who are absent but not diagnosed with the illness.

The government has now imposed a mandatory self-isolation period of 14 days for all international arrivals into Australia – covering citizens, residents and visitors regardless of which country they have been to.

If you develop symptoms associated with coronavirus, you will only be tested if:

1. You have returned from overseas within the last 14 days and develop respiratory illness, or
2. You have been in close contact with a confirmed COVID-19 case in the past 14 days

Understandably employers are confused about whether absent employees should be paid sick leave, be required to take annual leave or take leave without pay.

• What if an employee has no symptoms but has just returned from overseas?
• What if the employee has symptoms but does not qualify for testing?
• What if an employee refuses to self-isolate?
• What if the employee chooses to self-isolate due to a real or perceived risk in attending the workplace?

In all cases we recommend that, where possible, companies take a flexible approach and allow employees who are able to work from home as much as possible in order to minimise disruption to the business and enable the employee to continue working and earning their usual wages. Of course this is not practical or possible for all businesses, however where it is an option it is certainly beneficial for all parties to accommodate working from home requests.

While there has been no official response from the government about this issue, based on current workplace legislation and case law we suggest the following approach that may assist employers attempting to navigate this new and unknown territory.

Employee arrives back from overseas

In this case there is a clear government directive that from midnight on 15 March 2020 these persons are required to self-isolate for 14 days (and there are penalties that apply if they do not).

1. If the employee has already left Australia and has just returned or is returning after 15 March 2020: in our view the employee is entitled to paid sick leave for the duration of the 14-day absence. If paid sick leave expires the employee should be given the option of taking annual leave or leave without pay.
2. If the employee has future overseas travel plans: employees should be directed to declare all future travel plans and, provided the employer has a clear policy in place, our view is that the employer can state that these employees will be required to take a further 2 weeks annual leave after they return to Australia. As the employee is travelling overseas knowing that they cannot attend work for 14 days after returning, this means that sick leave will not be available unless they are able to provide a medical certificate for a genuine illness.

Employee in contact with a confirmed COVID-19 case – no symptoms

If an employee has been in contact with a confirmed COVID-19 case but has no symptoms, while the recommendation is to self-isolate there is no entitlement to access personal leave as the employee is still fit for work.  Ideally the employee would be able to continue to work while in self-isolation (and therefore continue to be paid their usual salary or wages).

However if working from home is not possible or practical, it is likely the employee will need to take annual leave or leave without pay for the duration of the absence (unless the employee is caring for a family member who is unwell in which case carer’s leave is available).

Employee absent with symptoms but not eligible to be tested

In this case the usual requirements for accessing personal leave would apply, however employers may need to be flexible in requiring medical certificates given the current demand and lack of availability of access to doctors. If an employee is absent and unwell, they should be paid personal leave (if available).

Employee refuses to self-isolate

An overriding obligation of an employer is to provide a safe and healthy workplace for its employees. If an employer has a reasonable basis to believe that an employee is endangering the health and safety of other employees in the workplace then the employee can be directed to remain away from work for the recommended 14-day period. A reasonable basis might be that the employee has been in contact with a person with a positive diagnosis of coronavirus. Employers are encouraged to be flexible in their approach, however if it is not possible for the employee to work from home during this period then the employee will need to take annual leave or unpaid leave.

Employee chooses to self-isolate

Again, if working remotely is possible then employers are encouraged to consider this option. Otherwise and employee who chooses to self-isolate without symptoms will not have access to personal leave, however, should be permitted to take annual leave or leave without pay.

Please contact Andrew Bland or call 02 9412 3077 if you would like further information or to discuss how we can assist you and your business.