Reasonable requirements of employees prior to their return to work?

Employers are expected to be increasingly vigilant in managing COVID related risks in the workplace particularly when managing employees returning from an absence likely to involve COVID or at least a risk of it.  But with the ever-changing public health regulatory landscape we understand that this has become difficult and places enormous strain on HR teams.

Employers are best placed, to avoid future disputes and unnecessary administrative strain on their HR teams, by proactively explaining, in user-friendly terms, what the organisation expects of them regarding their return to work requirements.

Whatever the expectation, provided it meets the minimum standards by any public health direction, it must also be objectively reasonable.

While the general position is that the employer’s WHS duty of care will justify a request of an employee to demonstrate they are fit for work, the individual circumstances of each infection / close contact will determine:

    (a)  whether the request is reasonable; and

    (b)  what type of evidence is reasonable to request.

As with all matters which place additional requirements on employees, consultation with the workforce, HSRs and union representatives is essential in advance.  It is better to have the ‘argument’ now (ie pre-dispute) than at the time of creating an actual dispute (which is likely to end up in FWC).  In our experience so far, almost all ‘proposed’ COVID processes and procedures have been overwhelmingly supported by the workforce provided that the information is provided in advance and in user-friendly terminology.

Evidence of a COVID-19 test or doctor’s certificate is considered sensitive personal information. Accordingly, privacy obligations under the Act and internal policies must be met.

We have created a table (provided to retainer clients) intended to assist employers in deciding whether to make a request to an employee and what evidence to request. *As with all recent COVID related advice, this information is provided is general advice only and is subject to consistently changing public health directions.

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