C8 - Coronavirus (COVID-19): Employer Response Guide

This guide will help you plan your organisation’s response to the global health emergency

What should employers be doing in the current situation?

Organisations should focus on planning and prevention with both urgency and calm. Do what you can to immediately protect staff and to cope with the changing environment. The government has started to outline plans to allow certain sectors in Australia to return to work. Employees who can work from home have been advised to continue to do so but the Government has released guidance that should allow businesses that cannot operate from home to begin to return to the workplace.

Your employees' health and well-being is paramount. Employers have a statutory duty of care for people’s health and safety at work and you should do everything in your power to support people remaining at home or taking necessary precautions. This will mean starting to plan for a gradual return to the workplace, taking account of legal obligations and the latest Government guidance.

HR basics to follow

• Make sure everyone's contact numbers and emergency contact details are up to date.
• Make sure all staff are aware of the latest government advice, your response as an employer and what you are doing to protect people’s health and reduce the risk of infection spreading.
• Continue to communicate as the situation changes.
• Make sure managers are clear on any relevant policies and processes, for example sickness reporting and sick pay, and your home working policy.

Protect your workforce

• Keep your workforce well-informed of the ongoing developments and official advice from the Government and promote resources that are available.
• Advise employees to take precautions. This includes working from home where possible and avoiding non-essential social contact (in line with the latest government advice).
• If your business is permitted to remain open under the latest government measures, or is beginning to return to the workplace, reduce the spread of infection by providing soap and hand sanitiser gels with alcohol, especially in communal areas like kitchens and coffee areas. Provide staff with hand sanitisers. Increase the frequency and intensity of office cleaning; consider a deep clean; think about frequent wiping down of communal spaces such as kitchens, handrails on stairs, lift buttons, door handles, etc. Make sure you follow the latest Government guidance relating to COVID-secure workplaces.
• The Australian Government has announced new measures that mean employees who have coronavirus or cannot work because they are self-isolating are entitled to Statutory Sick Pay (SSP) from day one. This includes individuals who may be a carrier of COVID-19 but may not have symptoms and people caring for those in the same household who display COVID-19 symptoms and have been told to self-isolate.
• Employers should use discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate. More information is available on the government website and in the FAQ 'Do employees need a medical certificate?'.

Protect your business

• Employers should develop a contingency plan to prepare for a range of eventualities regarding the business impact of the virus. You can download helpful templates from the Coronavirus: support materials page and refer to the remote working series to prepare for the widespread move to working from home.
• Appoint a pandemic coordinator or team to prepare and update plans and keep on top of official advice.
• Think about transferrable skills – do you enough people to keep business-critical operations running if you do face staff shortages? Start training people now.
• Encourage remote working and working from home where possible, to comply with the latest government advice. Consider making laptops available for staff who wouldn’t normally work from home. Encourage team working / external meetings through video conferencing, etc. Make sure there’s the right IT support in place for people.
• If your business is permitted to stay open or is planning a return to the workplace, consider creative resourcing solutions like staggering shifts or having A and B teams so fewer people are in the workplace at any one time and reduce the risk of infection.
• Maximise self-service options – for example, self-service tills at supermarkets so fewer staff are needed, encouraging people to do online banking rather than going into branch, etc.

Planning your short-term response: key policies and processes to review and communicate

Your priority for your short-term response should be to protect your workforce. You should continue to take steps to safeguard the health and safety of your workforce and allow for as much business continuity as possible.

Sick leave and pay

• Review your policy around absence and where possible be generous with contractual sick pay.
• Confirm to employees what will happen if they need to self-isolate. Be clear about what sick pay arrangements will apply. The Government’s new measures mean employees who have coronavirus or who cannot work because they are self-isolating are entitled to Statutory Sick Pay (SSP) from day one. This includes individuals who may be a carrier of COVID-19 who may not have symptoms and will also apply to people caring for those in the same household who display COVID-19 symptoms and have been told to self-isolate.
• Update employees with any changes to your processes around reporting an absence, medical certificates and sick notes.

Annual leave and pay

• Review your policy around annual leave and make clear to employees what will happen if they need to cancel their holiday.
• Encourage people to still use any leave they have booked even if travel is not possible; it's important to take time away from work especially if they are now working from home.

Remote working

• You should support employees in working from home wherever possible.
• Review health and safety arrangements for any obstacles to remote working and work to remove these.
• Consider whether you need to make adjustments for any employees with protected characteristics.
• Invest in technology to facilitate remote working or look into free tools for video conferencing.
• Be sure that you plan remote working options for all staff groups. Try to plan alternative work where remote working isn't possible.
• Where remote working isn’t possible, think about pay/continuity etc.
• Careful planning is needed, along with trust, good comms and people management.

Staff mental health and well-being

• Be aware that some employees, understandably, may be very worried about catching the virus, while others will have concerns about their family or friends. Listen to people’s concerns and reassure them that any measures taken are to protect people and there is no need to panic. Communicate regularly with the workforce and ensure that line managers are regularly informed about the organisation’s contingency plans so that they can also provide guidance to reassure people.
• Signpost employees to further advice or support, such as employee assistance programmes and any other well-being resources you have available. Consider providing counselling for those employees who are particularly anxious.
• Keep checking in on people’s workloads and stress levels and offer support where possible. If you can, adjust targets for employees who remain working and be flexible with deadlines. The webinar on health and well-being has advice on looking after staff health, safety and well-being.

Planning your long-term response: specific groups of employees and business areas to consider

Employers and people professionals will need to consider their long-term plans for business continuity and working from home for a longer time period as lockdown measures continue. This will include looking at specific groups of employees, areas of the business and perhaps changing business practices.

Carers

• COVID-19 will have impacted carers, potentially making an already stressful role even more demanding. Employers should look to be as supportive and flexible of working carers as possible, be aware of their concerns.
• Employers should look to support homeworking where possible. Carers for relatives at home could use the statutory right to request flexible working. The other main right for employees with caring responsibilities with an emergency or unexpected problem is emergency dependant leave which enables a short unpaid period off, for example, to look after ill relatives. This would cover making arrangements to care for the dependant, including an adult family member who is ill with coronavirus.
• Business productivity and profit will be an issue for many employers; larger businesses might have the infrastructure and funds to cope with long-term remote working in relation to employee absences due to caring for a relative, school closures etc, but smaller businesses may not be able to survive to pay staff if there is reduced productivity. In this situation, it may be necessary to consider alternatives such as stand-downs.
• Other longer-term arrangements include working from home or adjusted hours. Employers are under no obligation to allow staff with caring responsibilities to work flexibly but in the current situation, this may help keep employees working whilst managing their caring responsibilities.

Atypical/gig/self-employed workers

• The legal status of atypical and gig workers is not always clear. There have been many highly publicised cases addressing the extent of rights for workers such as delivery drivers or couriers. Some atypical or gig economy workers could potentially be employees, workers or self-employed. Their status may not have been called into question until considering their rights following the coronavirus outbreak.
• Whilst employees who self-isolate can access personal/carers leave from the first day they are off it is unlikely this applies to some atypical or gig-economy workers.
• Self-employed people who have to self-isolate, have limited protections as they are not eligible for sick pay. The precise legal rights of atypical and gig economy workers will depend upon any contractual sick pay and terms of the agreement.
• As always, the precise legal rights of these workers will depend upon both how the arrangement operates in practice as well as the terms of the contractual documentation. Some atypical workers may in fact be protected as employees.
• Some organisations using atypical or gig economy workers may decide to offer full or partial sick pay or goodwill cancellation payments even though they are not obliged to do so.
• Some atypical workers may have provision for payment in the event of cancellation. Goodwill, expenses or an assistance or inconvenience payment following coronavirus closures may have long term benefits of a harmonious, incentivised and engaged pool of workers.

Redundancy

• Unfortunately, the coronavirus (COVID-19) situation may lead to some businesses being forced to reduce the size of its workforce to survive (even with support measures like the Coronavirus Job Keeper Scheme). Several sectors have already warned that they are massively vulnerable to the outbreak of the coronavirus (COVID-19). The government have introduced new cash grants and business rate holidays for some businesses to combat this so businesses should make sure to explore all of these options before proceeding to redundancies.
• The normal legal provisions apply which mean that employers are required to take steps to avoid redundancies.
• Redundancy is a special form of dismissal which happens in three situations: when an employer has a reduction in the need for employees to carry out work of a particular kind, or the employer intends to cease, continuing the business at a particular workplace and the actual or intended closure of the whole business, as may occur in the coronavirus (COVID-19) situation.
• Employers will have to follow the correct fair procedure. This includes following the organisation's own procedure (if any) and the following stages including making a statutory redundancy payment, and a notice period payment.
• The exact redundancy procedure varies but employers who feel that the coronavirus makes redundancies inevitable may already have started the planning stage including consultation and consideration of alternatives. The following stages are usually then involved: identifying the pool for selection; seeking volunteers; consulting employees individually and collectively; information to provide to the representatives; scoring matrix; selection; individual meetings; confirming redundancies; notification; suitable alternative employment; time off for interviews. redundancy payment; counselling and support.

Avoiding redundancies

• The steps employers can take to avoid compulsory redundancies include seeking applicants for voluntary redundancy or voluntary early retirement, encouraging existing staff to work flexibly on reduced hours by agreement, freezing or restricting recruitment, reducing or banning overtime, reallocation existing employees to any parts of the business which are less affected by the virus.
• Other possible steps include short-time working or temporary lay-offs, reduction in the use of self-employed contractors, freelancers and casual workers and pay freezes.
• It is a difficult time to take sabbaticals and secondments but those and any form of unpaid or reduced pay leave are alternatives. Other possible schemes include paying employees a reduced allowance whilst they do not work for their employer for a specified period and are free to seek work elsewhere. Other possibilities include executive pay cuts.
• If employees agree to reduce their working hours for a defined temporary period, the employer should confirm the exact hours to be worked, the start date of the varied arrangement, when the employee will return to their previous working hours and details of how to pay will be affected.

Bereavement leave/pay

• Even though the mortality rate of Coronavirus (COVID-19) remains low the harsh reality is that employees may face the loss of a friend or family member and you may even lose an employee.
• To prepare for this eventuality review your bereavement policy (if you have one) and assess if you can be more generous. Be as flexible as you can about leave and pay.
• Offer support to employees, share details of any employee assistance programmes and be prepared to listen to concerns.

Risks to consider

• Throughout your organisation’s response to the COVID-19 global health emergency, there will be people management risks that you will need to be aware of and take steps to address.
• Business continuity and pressure on remaining staff
• The outbreak of the virus is very likely to affect employees in your organisation in different ways. It will disproportionately affect some people, for example, if schools close and parents need to keep children at home. Some employees may need to keep working while others self-isolate or stop working, and so think about how you can prevent perceptions of unfairness creeping in and keep everyone on board in these exceptional times.
• Regularly communicate how much you value everyone’s contribution. If some people are taking on additional responsibilities to bridge gaps, make sure they feel appreciated and this is for a relatively short time. Emphasise that you can only succeed as an organisation and protect your people and the business if you all pull together.
• Make sure that you are not putting unacceptable levels of demands on people and that they have the support and resources in place to fulfil their tasks, particularly any additional duties.
• Line managers should be trained and confident to spot any early warning signs of people experiencing stress; make sure they have regular catch-ups with people (by telephone or using video conferencing technology if working from home) to ensure they are coping with any extra demands or workloads.
• Provide clear signposting to any internal and external support for people, such as counselling and an employee assistance programme.

Direct and indirect discrimination

• Despite the unprecedented nature of this situation, employers still have to remain aware of potential direct and indirect discrimination.
• One aspect of discrimination which employers could be exposed to is the liability for harassment by one employee to another. Employers must take reasonable steps to prevent harassment and tackle inappropriate behaviour and prejudice being shown towards those of Chinese or Italian origins with completely inappropriate misplaced blame for the outbreak.
• Another potential discrimination risk could arise from refusal of requests for flexible, home or part-time working due to school closures where women could be disproportionately affected leading to sex discrimination claims.
• There is also a risk of disability discrimination claims if, for example, a delayed decision to permit staff to work at home disproportionately affects a certain group, for example, those with anxiety, asthma or those who have compromised immunity.
• The World Health Organisation (WHO) has advised that those who have an underlying condition including heart disease, respiratory conditions and diabetes, have a higher risk of developing severe illness from the virus. Therefore, employers should carefully consider these employees in light of the obligation to make reasonable adjustments to the employee’s working arrangements and provide a safe working arrangement. The same goes for older workers as according to the WHO employees aged over 60, have greater vulnerability.
• Where there are genuine concerns for any reason including age, infirmity, susceptibility and anxiety the employer must try to resolve these concerns by, for example, offering flexible working, or taking a period of paid leave.

Domestic abuse

• Amongst other health, well-being and safety concerns relating to the impact of COVID-19, there are reports of an increase in calls and online requests for help since the lockdown.
• It’s vital that employers, and in particular HR and line managers, know how to respond when they suspect someone may need help or discloses that they are experiencing domestic abuse.