Erin Kidd* looks at some of the situations that might arise for employers and employees as work-from-home rules are relaxed.
Australia is to emerge from its COVID-19 lockdown by way of the three-step framework announced by Prime Minister, Scott Morrison.
As we transition through the steps 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.
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.
In cases such as these, it is clear the employer will need at least some of its workers to return.
In other workplaces, the timing of the return 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 some 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.
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.
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.
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.
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 the day.
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.
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.
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.
If such a request is made, the employer needs a legitimate business reason to refuse the request following the work-from-home measures that some employers have put in place for COVID-19.
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.
Ultimately, unless the employee can make a formal request for flexible working arrangements under the Fair Work Act, 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.
*Erin Kidd is a special counsel in employment law at McCabe Curwood. She can be contacted at [email protected]
This article first appeared at smartcompany.com.au.
