Returning employees to work in a COVID-19 world

back to work

As businesses look towards recovery in these unprecedented and uncertain times, issues such as identifying and managing work health and safety risks and the unwinding of stand-downs and temporary contractual variations need to be considered. However, the COVID-19 situation remains fluid, and it is important that businesses remain informed so as to make decisions that take into account all of the surrounding circumstances.

In light of the announcement by the Australian Federal Government of its three-step plan to ease COVID-19 restrictions, many businesses are now considering their options to reopen part or all of their operations.

A key consideration in this process will be the return of employees to work. In particular:

  • ensuring the work health and safety of employees, including both in the workplace and when travelling to and from work; and
  • the unwinding of some or all of the temporary measures implemented by businesses in the past few months in response to COVID-19. For many businesses, this has included standing down employees without pay, temporarily varying employees’ contractual arrangements, and/or the issuing of a range of directions to employees under the JobKeeper legislation.

Where does recovery planning begin?
The starting point for employers will be to assess the feasibility of returning their staff to work from a health and safety perspective.

For many businesses, particularly those in customer-facing environments such as the hospitality and retail sector that have been heavily impacted by COVID-19, this will understandably be but one factor that is weighed up against the significant losses that continue to be incurred while their operations remain in stasis. Overlaying this is the need to adhere to government guidelines that remain in place, such as the maintenance of social distancing (at least 1.5 metres between people and a maximum of 1 person to every 4 square metres).

This can be a difficult balancing exercise to undertake but a work health and safety assessment is critical so as to reduce the risk of further COVID-19 outbreaks and the impact this will have on both the business and its employees. The Federal Government and many of its counterpart State and Territory safety regulators have already released guidance materials and checklists to assist with the management of a return to work.

Some questions that businesses will need to consider include:

  • Is there a need to have the entire workforce return to the workplace? Can the return to the workplace be staged or carried out on a rotating basis?
  • What are the regular modes of transport used by employees to travel into work and will they remain a safe and reliable means for employees to rely on? For example, how will employee start times be impacted should measures be introduced to limit passenger capacity on public transport?
  • What measures and restrictions are landlords proposing to implement? Will there be temperature checks upon entry and will limitations be imposed on the number of people travelling in a lift? If so, how might this impact on productivity and punctuality of staff, and how can this be mitigated?
  • Is it possible to maintain safe social distancing with the current office plan? If not, what should be done to allow this to be achieved? In particular, are there any areas in the office which will need to be carefully monitored such as kitchens, meeting rooms and bathrooms?
  • What other protocols should be implemented to maintain good hygiene? For example, what protocols should be followed for arranging and conducting external meetings on site? Will deep cleans of the office space be arranged every night? Where will hand-sanitiser stations be located?
  • What support mechanisms will be offered to help employees navigate any mental health challenges as they return to the workplace?
  • Are there policies and procedures that need to be updated to address changes in the way that work is performed?
  • Is there a need to consult with employees about the changes that are occurring? If so, about what, and how will it take place?

If a return to work is carefully implemented and continuously monitored, businesses will place themselves in a better position to respond to future issues that may arise.

Unwinding temporary arrangements
The next step for many businesses will be to review the composition of their current active and inactive workforce and determine who can return to gainful employment. As part of this, decisions will need to be made about whether some or all of these workers can carry out their duties and responsibilities from home, or whether some workers will need to return to the workplace.

For the majority of businesses, the current state of play will generally fall into one (or both) of the following categories:

  • Employees who have had their hours and pay temporarily reduced; or
  • Employees who have been stood down from their role (pursuant to either section 524 of the Fair Work Act 2009 (Cth) or a JobKeeper enabling stand down).

For employees falling into the first category, the variation to their hours and pay may have been effected by a written variation to their contractual terms. If so, these variations will need to be unwound and in most cases, this can be achieved through written correspondence with the employee or a direction to the employee. The correspondence should provide affected employees with sufficient notice of when the variations will cease and when they are expected to return to their ordinary hours of work (which may be on a gradual basis).

Where the employment relationship is also governed by an underlying industrial instrument such as a modern award or an enterprise agreement, businesses should be mindful that there may exist an obligation to consult with affected employees before any contractual variation can be unwound.

In circumstances where an employee has been stood down, careful consideration must be given to how the stand-down can now be retracted so as to not undermine the validity of the original stand-down direction. In other words, what has changed to allow the business to operate now? Why can employees now be usefully employed, despite previously being told there was no useful employment for them? This can be a minefield to navigate and the answers can vary depending on whether a full or partial return to duties is proposed, and the terms of the particular stand down provision upon which the business relied. Consultation obligations may also apply should there be an applicable industrial instrument.

“Returning employees to work in a COVID-19 world” was co-written by Shivchand Jhinku, Lisa Soo & James Banh of Herbert Smith Freehills.

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