On 30 September 2022, the Prime Minister announced that National Cabinet agreed that from Friday 14 October 2022 there will no longer be a mandatory isolation period for COVID-19. Premier Daniel Andrews has announced that Victoria’s pandemic declaration will come to an end at 11.59pm on Wednesday 12 October, so mandatory isolation will end one day earlier in Victoria.
After that time, employees may attend work when they have tested positive for COVID-19 unless they come to an alternative arrangement with their employer.
Isolation (and, in Victoria, mandatory vaccination) requirements will still apply in high risk sectors such as health, aged care and disability.
Can employers direct employees with COVID-19 to not attend work?
Under work health and safety (WHS) laws, employers have an obligation to take reasonably practicable steps to ensure the health and safety of their workers and others attending the workplace. In meeting these obligations, an employer may conclude that not allowing COVID-19 positive employees (or at least those who are symptomatic) to attend the workplace is a ‘reasonably practicable measure’ to reduce the risk of transmission of the virus to others in the workplace.
In conducting their own safety risk assessment, employers will need to consider the nature of the workplace, the employee’s role (including whether they are required to have close contact with others) and external factors such as the degree of community transmission and public health advice. Employers must also comply with applicable consultation obligations under WHS laws and any relevant enterprise agreement.
If an employer decides to direct a full-time or part-time employee not to attend work when they have COVID-19, and alternative arrangements such as working from home are not possible, then the employer would be required to pay that employee for that period of isolation if the employee is otherwise considered ‘fit for work’.
Employers should also remind employees that they have a duty under WHS legislation to take reasonable care for the health and safety of others who may be affected by their actions, which would include not attending the workplace if they have COVID-19 symptoms.
What if employees request to stay home?
If an employee is not required to stay home by a government directive or employer direction, the employee may seek to self-isolate during the period they have COVID-19. In this case, they may request to work from home or agree with their employer to take leave (including sick leave if they are unfit for work). The regular leave application process will apply in this case.
Where can I find out more information?
Each State and Territory will be implementing this change through its own public health legislation, so you should review this detail once released. We also expect the Fair Work Ombudsman and Safe Work Australia / WorkSafe will release guidance shortly.
Please contact one of our Workplace Relations team members if you would like to discuss questions that are specific to your workplace.
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