Employers and COVID-19 – what happens if staff are infected?

With cases in the community expected to hit their peak in the coming weeks, more people are being required to self-isolate.

Time to read: 6 mins

Note: This article was updated on 11 March 2022. For the latest updates on isolation rules please check here.

We are now in Phase 3 of the government’s response to Omicron, which has brought changes to the criteria of who needs to isolate as well as to isolation periods and testing protocols. Here we have put together some general guidance for employers around managing self-isolation in the workforce at this phase and what government assistance is available. It is important that businesses continue to assess the potential impact of isolation on their workforces.

How to work out your 7 days of self-isolation chart

Image from Unite against COVID-19, updated 12 March 2022

What are the current rules around isolation?

The current requirements are:

  • If a person tests positive for Covid-19 they will be required to isolate at home for seven days while they recover and must be symptom-free before being released
  • Household members of a positive case are required to isolate for seven days from the day the first positive case received their test result, and must take a test on days three and seven. If all tests are negative they can leave isolation at the same time as the positive case. If they test positive at any point they must continue to isolate for a further seven days. Household contacts who have already had the virus ("recovered cases") will not need to isolate if they become a household contact within 90 days after having the virus.
  • If someone is in contact with a positive case (or who would have been a close contact previously) but does not live with that person, there are no isolation requirements. They should however monitor their symptoms

The isolation periods above came into effect at 11.59pm on 11 March 2022 and there may be pressure for the Government to reduce these further in the future.

What government support is available?

Employers have access to the following two government support schemes to help pay employees who are required to isolate. In doing so they have to complete a Declaration which requires they meet certain obligations.

COVID-19 Short-Term Absence Payment

This scheme changed recently with the use of Rapid Antigen Tests (RATS) being adopted as the primary means of identifying positive cases. In short, you cannot get the Short-Term Absence Payment when your employee takes a RAT because the results are almost immediate (approximately 20 minutes). If your employee tests positive you will be able to apply for the Leave Support Scheme.

So, eligibility for this payment ($359 for an affected employee) is now very limited.

COVID-19 Leave Support Scheme

At the time of writing there were no changes to the qualification requirements for the Leave Support Scheme on the Work and Income website despite the move to Phase 3. The Government announced on 9 March that Leave Support Scheme payments will be weekly given the new reduced isolation periods.

The following is based on the scheme as it stood on 11 March and employers should keep checking here for changes.

The Leave Support Scheme provides a weekly payment of $600 for full time employees (20-plus hours per week) and $359 for part time employees (up to 20 hours per week) who are required to isolate for at least four consecutive days due to:

  • Testing positive for Covid-19, being a close contact of a positive case, being the parent or caregiver of a dependent who is isolating, being in or having household members in the category of people most at risk of severe illness from catching Covid-19; and
  • Being unable to work from home

Given the Phase 3 requirement for household contacts of positive cases to isolate one would logically assume this scheme applies to employees in this category however at the time of writing the website did not state this.

What are the employee entitlements to leave and pay?

It is important to remember that these schemes are there to help employers retain staff and when applying you do have to be conscious of the commitments you make when signing the declaration. They include that you will, for the period you receive the subsidy:

  • Use your best endeavours to pay at least 80 per cent of each named employee's ordinary wages or salary; and
  • Pay at least the full amount of the subsidy to the each named employee; but
  • Where the ordinary wages or salary of a named employee is lawfully below the amount of the subsidy as at the date you apply for it, pay the employee that amount

There has been some confusion around how the government subsidies relate to any leave the employee may take while isolating when they are unable to work. This is because there is often a gap between the ordinary salary or wages a person can earn during the isolation period and the amount of ordinary salary or wages the subsidy might cover.

There are some general "rules of thumb" that employers should consider:

  • The Leave Support Scheme is a subsidy for the employer to use provided the commitments in the Declaration are honoured
  • There is a question about sick leave entitlements being applied to cover an isolation period when an employee is not actually sick. There are different opinions from employment lawyers on this question however the key argument is that sick leave is for a specific purpose – that is when the employee or someone who is dependent on them is actually sick
  • If the employee has COVID-19 during the isolation period or they are the parent or caregiver of a dependent in their household who has COVID-19 and meet the eligibility requirements then sick leave would normally apply. Our view is that the subsidy could go toward paying sick leave in this scenario

When it comes to the use of leave to cover any part of the isolation period the Declaration does set parameters on what you can do. The most relevant commitments are:

  • You will not make any changes to your obligations under any employment agreement, including to rates of pay, hours of work and leave entitlement, without the written agreement of the relevant employee
  • You will not unlawfully compel or require any of the named employees to use their leave entitlements for the period you receive the subsidy in respect of those employees

In essence you can agree with your employee whether they use annual leave or other leave, but you cannot compel them to do this outside of any legislative requirement. Every situation can be different so we recommend you get advice about the approach you take.

What is included in the Declaration?

As mentioned above, employers must sign a declaration as part of their application for either of the support schemes. By signing the declaration, you acknowledge and agree that:

  • Your business meets the eligibility criteria, is not currently receiving a subsidy through any other Covid-19 support schemes for the same employee, and in the case of the Short-Term Absence Payment your application is made within eight weeks of the employee having a Covid-19 test
  • The employee(s) named in your application are eligible to receive the payment
  • You have an obligation to use the subsidy to retain employees
  • You have discussed the application with the named employee(s) and have their consent, in writing if practicable, to information sharing

For more detail, links to each of the declarations are below.

Short-Term Absence Payment Declaration

Leave Support Scheme Declaration

It is important you do not breach any of the Declaration requirements.

DISCLAIMER: No liability is assumed by Baker Tilly Staples Rodway for any losses suffered by any person relying directly or indirectly upon any article within this website. It is recommended that you consult your advisor before acting on this information.

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