Discrimination and Coronavirus (COVID-19)

The recent Coronavirus (COVID-19) outbreak has raised the need to balance the health and safety concerns which an employer may have, and being mindful of not discriminating against employees.

The existence of Coronavirus has resulted in a number of businesses shutting down their operations and changing the way which they do business, including making their employees work from home.

The existence of Coronavirus may require some employees to self-isolate or take leave due to carers or family responsibilities, thereby impacting an employee’s ability to work.

Discrimination and General Protections Provisions of the Fair Work Act

Under section 351 of the Fair Work Act 2009 (Cth), an employer must not take adverse action against a person who is an employee because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Adverse action is defined under section 341 of the Fair Work Act, and may include dismissing an employee, injuring an employee in their employment, altering the employee’s position to their prejudice, or discriminating against an employee and other employees of the employee.

Where an employee can show that employer has taken adverse action against them as result of a protected characteristic the employee may be able to make a general protections claim.

When an employee makes a general protections claim, it will be presumed that the adverse action was taken for the reason which the employee says, but the employer may then rebut that presumption by showing that the decision was made for another reason.

Those protected characteristics which may be relevant due to Coronavirus are as follows:

Race;
Physical disability; and/or
Family or carer’s responsibilities.

What am I Entitled to if I need to take leave due to Coronavirus?

At the time of writing this post, there is no specific entitlement to Coronavirus leave which applies to all employees. Some employers, however, have decided to offer leave to their employees if they need to self-isolate, for example, Woolworths, Telstra and Commonwealth Bank have announced that they will support workers who are affected by Coronavirus. Also, if you are covered by some modern awards, you may be entitled to unpaid pandemic leave under your award.

Under the National Employment Standards, all employees except casuals are entitled to personal/carer’s leave. Employees are entitled to 10 days paid personal/carer leave per year of service, which accumulates from year to year.

An employee is entitled to take personal/carers leave if they are not fit for work because of a personal illness, or personal injury or if they need to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of a personal illness, or personal injury.

For an employee to receive this leave, they need to comply with the notice and evidence requirements, which include:

Given notice to their employer as soon as practicable (which may be a time after the leave has started);
must advise the employer of the period, or expected period, of the leave; and
if required by the employer, provide evidence that would satisfy a reasonable person that the leave was taken for either personal/carer’s leave. In the case of Coronavirus, this may include a medical certificate.

Some modern awards also provide for an ability to take annual leave at half pay during the COVID-19 pandemic. For example, if you had 2 weeks of accrued annual leave, you could take 4 weeks leave, but only 2 weeks would be deducted from your leave entitlement. In other words, you would be paid 2 weeks for 4 weeks of leave.

How Can MKI Legal Help If I’m an Employee?

If you are employee who has been affected by Coronavirus or someone who you have family or carer’s responsibilities to, we can provide advice/assistance to you in the following ways:

If you need to work from home due to your family or carer’s responsibilities, we can assist by making a flexible working arrangement request
We can provide advice on your entitlements to utilise personal and carer’s leave
In the event you are dismissed, we can assess if you would be eligible to make a dismissal based claim.

How Can MKI Legal Help If I’m an Employer?

If you are an employer and have concerns about the impact on your business as a result of Coronavirus, we can assist in the following ways:

Creating policies and procedures in relation to working from home and fitness for work
Provide advice on when you can stand down your employees
Advise on leave options available if your employee has Coronavirus
Provide advice if you are concerned about breaches of discrimination laws as result of proposed action your business is seeking to take
Advise on your options if you are considering dismissing an employee

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