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 Returning to the office post pandemic

Returning to the office, post-pandemic

There’s no doubt that COVID-19 is still causing a lot of strain on businesses in 2022. It is a tough balancing act keeping employees engaged, healthy and safe under the pressure of a global pandemic while also keeping a business afloat. 

Management of staff, at least for the foreseeable future, will require an understanding of health and safety law. 

In this blog we will cover the entitlements employees have access to if they are affected by COVID-19, and we will also dive into some common traps to avoid.

Health & Safety Law - what are employers rights and obligations?

Employees are still prohibited from attending work if they test positive to COVID-19, or if they are directed to self-isolate.

Employers have a right to request information and evidence from employees who are unable to attend work for reasons including being exposed to COVID-19, such as a medical certificate from a doctor or a text message from a relevant government health department. 

If an employee is affected by ‘Long COVID’, employers will need to consider whether there are suitable alternative arrangements to accommodate for this illness. An employer may need to gain some understanding of their employees’ ability to perform their role with Long COVID, possibly by way of an independent medical examination. An employer may be able to direct an employee to attend an independent medical examination.

What are employees entitled to if they can’t come to work?

Employers need to have an understanding about what they should do if their employees can’t attend work due to COVID-19. For some industries, two weeks of unpaid pandemic leave may still be available. This is a particularly good option for employees who do not want to access their paid leave entitlements or those who have no paid leave remaining.

What is unpaid pandemic leave?

Unpaid pandemic leave was introduced as a temporary leave entitlement and was inserted in 99 Modern Awards on 8 April 2020. It will continue to apply to employees in ‘Schedule X’ of 42 Modern Awards until 30 June 2022. 

Employees covered by an Award containing Schedule X are still entitled to take unpaid pandemic leave and have the option to take twice as much annual leave at half pay. 

If your business is covered by one of the Awards outlined in this link to the FWO, Schedule X leave may continue to apply to your workers.

What other leave entitlements can employees use if affected by COVID?

Employees can elect to take unpaid pandemic leave instead of their paid leave entitlements. Pandemic leave should always be accurately reflected on their payslip.

If an employee would like to take sick leave but they have none remaining, they can request to take their annual or long service leave (if eligible under the relevant state legislation) instead. Otherwise, employees are usually able to access unpaid leave.

returning to the office

Common pitfalls

Managing change is difficult. Communication about new procedures or policies can be a challenge, especially in circumstances where both employees and employers are exhausted from continual uncertainty and global ‘bad news stories’. 

However, the following points may affect the roll-out of the return to the office:  

  • Before an employer requires employees to return to the office, it will need to engage in a consultation process.

  • Employees are required to follow lawful and reasonable directions of their employers. Such directions may include returning to the office or the workplace. Most employees probably will not have a right to work from home indefinitely. However, this will need to be assessed by considering whether an employee can perform the inherent requirements of their role from home, and if not, when they are required to be back onsite to perform those requirements. This may be the best time to assess whether an employee can still perform their role;

  • If unvaccinated employees are required to come back onsite, employers will need to determine whether public health orders continue to apply to their business. For vaccinated employees, employers should consider whether proof of second or third doses of vaccinations are needed to remain compliant;

  • Employers are not likely going to be able to stop offering a permanent employee shifts indefinitely if they advise they cannot attend work due to COVID-19;

  • Some employees may be reluctant to come back to the workplace for a variety of reasons, including managing their own health and safety as well as navigating a new work landscape;

  • An employer’s work health and safety obligations include psychosocial risks and risks to an employee’s mental health. If an employee is experiencing stress or anxiety about returning to the workplace, appropriate sensitivity should be applied. Workplace claims can sometimes be avoided with honest but respectful conversations. 

Practical tips

The new COVID-19 normal might require employers to implement or update their policies and procedures around flexible working arrangements and COVID-19 vaccination policies (including references to boosters);

Employers should designate a member of HR or a team member to keep an eye on changing government directives if they have not already;

Employers should try to support staff and morale but ensure that directions and expectations of their employees are clear.

For more information on the roll-out of the return to the office, you can contact Gilchrist Connell via our website: www.gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.

About the Author

Natasha Whitehead 

Natasha is a Lawyer in Gilchrist Connells’ workplace relations and safety team. Natasha has a deep understanding of employment related issues with experience acting on both sides of a case. 

She comes from a strong plaintiff background which she applies to her experience in representing employers in the Fair Work Commission, Federal Circuit and Family Court of Australia and the Federal Court of Australia. This breadth of experience allows her to find quick and cost-effective resolutions.  

Natasha has broad experience in all areas of employment law and workplace relations. She has acted in matters involving termination of employment, workplace investigations, employee entitlements, interpretation of contracts of employment, statutory discrimination and occupational health and safety.  

Natasha is an active member of the Law Reform Committee for Victorian Women Lawyers.


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