How does COVID-19 affect my work rights?

Updated 26 August 2021

COVID-19 has impacted businesses and their employees across Australia.

Below, we have collated information to answer frequently asked questions about

  • Losing your job or income because of COVID-19
  • Leave entitlements during COVID-19 
  • Working during COVID-19
  • Exposure to COVID-19 at work 

Leave entitlements during COVID-19

  In response to COVID-19, the Fair Work Commission has made temporary changes to 9 Health Modern Awards and 57 other Awards to provide employees covered by those Awards with: 

  • 2 weeks of unpaid pandemic leave; and
  • the ability to take twice as much annual leave at half their normal pay if their employer agrees.

You can find information about this temporary change, and if it affects your employment on the Fair Work website.


Unless you are covered by one of the
Moderns Awards subject to temporary changes, the usual leave entitlements relevant to your position applies. Some workplaces may have developed additional policies to manage coronavirus-related staff absences. You should check with your employer to see if additional COVID-19 related policies apply to you.

What if I get sick during COVID-19?

You cannot attend work if you are sick with COVID-19, and your employer can direct you to not come to work if they are acting reasonably based on health and safety risks.  Under the Fair Work Act, an employer cannot dismiss you because you are temporarily absent because of an illness or injury.  

If you are a permanent employee and you are unwell, you may take accrued sick leave. If you don’t have enough sick leave accrued, then you can negotiate with your employer to take accrued annual leave or long service leave, or agree to taking unpaid leave.  

When you are ready to return to work, your employer may direct you to obtain medical clearance. This is a reasonable and lawful request if it is required to protect the health and safety of your colleagues.  

If you are a casual worker, you cannot rely on paid leave entitlements. If you have lost shifts because of a reason related to COVID-19, then you may be eligible for payment from the Australian Government. You can check your eligibility online.

You can find information about leave and pay entitlements during COVID-19 on the Fair Work Ombudsman website. 

 

What if I need to care for a sick family member?

If you are a permanent employee and you need to take care of an unwell family member, you may take accrued paid carer’s leave. If you don’t have enough accrued carer’s leave, then you can negotiate with your employer to take accrued annual leave, long service leave, or agree to taking unpaid leave.  

If you are a casual worker, you cannot rely on paid leave entitlements, but you are entitled to 2 days of unpaid carer’s leave each occasion. If you have lost shifts because of a reason related to COVID-19, you may be eligible for payment from the Australian Government. You can check your eligibility online.

 

What if I feel fine but am required to self-isolate? 

If you are required by the Australian Government to selfisolate and you cannot work from home, your employer is not required to pay you for this period, unless you can work from home or negotiate to take paid leave 

As you are not unwell or required to take care of someone who is unwell, you cannot rely on sick or carer’s leave even if you have that leave accrued.  

If you have lost income because of a reason related to COVID-19, you may be eligible for payment from the Australian Government. You can check your eligibility online.

Once your period of self-isolation is over, your employer might ask you to obtain medical clearance. This is a reasonable and lawful request if it is required to protect the health and safety of your colleagues. 

You can find information about leave and pay entitlements during COVID-19 on the Fair Work Ombudsman website. 

 

Can my employer force me to take leave because of COVID-19? 

Your employer cannot force you to take sick or carer’s leave, but if you cannot work because you are sick or caring for a sick family member, then you are only entitled to be paid if you use your paid leave entitlements.  

Your employer can direct you to take annual leave if that is reasonable. For example, it would be reasonable to direct an employee to take annual leave if a business is closing because of the impact of COVID-19. If your employer tells you to take annual leave, you can ask your employer to explain why that direction is being made, and why it is reasonable. 

Your employer also needs to follow the rules about annual leave in any Modern Award or enterprise agreement that apply to your employment. For example, there may be rules about taking annual leave in advance. 

You can find more information about this on this Fair Work Ombudsman webpage

Getting COVID-19 at work 

Can I claim compensation if I am infected with COVID-19 at work? 

If you are infected with COVID-19 while working, it is possible but rare that you have a claim either under workers’ compensation or against your employer. This is because you would need to prove that:  

  • the workplace is where you were exposed to and infected with COVID-19, and  
  • your employer’s failure to take reasonable precautions to protect you either directly caused or substantially contributed to your illness.     

   If the nature or location of your work puts you at greater risk of contracting COVID-19, then your employer may need to take greater precautions to protect you. For this reason, health care workers would likely have a stronger basis to make a claim that their contraction of COVID-19 was work-related.


E
very case is different. If you think you have a claim for workers’ compensation or against your employer, we strongly recommend that you seek legal advice before taking any action. 

Working during COVID-19 

Australian state and federal governments have implemented emergency measures that may require people to stay home unless they have a reasonable excuse, wear masks or get vaccinated if you work in certain industries. In line with these measures, many workplaces have changed the operation of their workforce. 


Can my
employer direct me to work from home because of COVID-19? 

Yes, to comply with isolation requirements related to COVID-19 your employer can direct you to work from home if you can do your duties, or reasonable alternative duties, there. If your employer’s direction is reasonable and lawful, you will need to comply with it if you want to continue with your employment 

    Reasonable alternative duties may differ depending on your role, your capabilities and your seniority (among other factors). You may wish to check your employment agreement or enterprise agreement (if one applies to you) to see if there are any terms about alternative duties.


Can my employer
give me health and safety requirements to follow if I work from home? 

Your employer’s duty to ensure your workplace health and safety as far as reasonably practicable continues to apply when you are working from home.  

As a result of COVID-19, many employers are implementing additional safety measures to ensure their workers can safely work from home. For example, you employer could give you a checklist or guidelines to set up a safe work environment at home. If you are working from home, you should discuss with your employer what measures they have put in place to ensure your health and safety in a home work environment.

 

If I have children at home, should my employer adjust my work so that I can care for them?  

If you cannot perform your usual duties from home because of childcare responsibilities, your employer is not obliged to make any adjustments to your work duties or hours of work. It is the employee’s responsibility to put appropriate childcare arrangements in place. However, you could try to negotiate with your employer to work less hours or work at different times of the day or week. 

If your childcare responsibilities are unexpected, for example if your child’s regular carer is unavailable with little or no notice, you can likely use you accrued paid carer’s leave for a short period because this is anunexpected emergency’. However, this entitlement is only for temporary and unexpected emergencies. Once the change in circumstances stops being an ‘unexpected emergency’, it will be up to your employer to continue to pay you carer’s leave.  

If you can foresee that your childcare responsibilities are likely to last for a long time, then you can negotiate with your employer and try to come to an agreement about flexible working arrangements that works for you both. Please note that any agreements must still comply with the terms of any applicable Modern Award or enterprise agreement.  


Can my employer force me to return to the workplace if I do not feel comfortable
 doing so 

Australian state and federal governments have implemented emergency measures that may require people to stay home unless they have a reasonable excuse. If you are required by these emergency measures to work from home, you must do so and your employer cannot force you back to your regular place of work while these measures are in place.  

Workers are generally required to follow reasonable directions from their employer. What is reasonable depends on the circumstances of each workplace. Things to think about include the nature of your work, your employment contract, and what is common practice in the industry. If returning to your regular place of work would cause serious or imminent risk to your health or safety, it could be reasonable to refuse such a direction. If this is the case, you should have a discussion with your employer.  

If your employer dismisses you because you refused to return to your regular place of work during the implementation of emergency measures, or because you refused an unreasonable direction, you may be entitled to challenge your employer’s decision to terminate your employment as per the usual workplace protections against unfair or unlawful dismissals. Read more about unfair or unlawful dismissals below.  

   If you think that your employer is making your workplace unsafe, you can contact:  


My employer t
old me that I need to get a COVID-19 vaccination in order to continue working. Can they do that?  

Although receiving a vaccination is voluntary, there are some circumstances where an employer may require you to be vaccinated against COVID-19.  In line with health advice, Federal, State, or Territory governments may have issued public health directions that require workers in certain industries to be vaccinated against COVID-19. There may also be clauses within enterprise agreements or employment contracts that require you to be vaccinated.  

Employers are able to direct their employees to be vaccinated if it is lawful and reasonable to do so. What is reasonable depends on the circumstances of each workplace. Things to think about include the nature of your work, your employment contract, employee circumstances, and workplace health and safety obligations 

If you are unsure whether this applies to you or if you have a medical reason preventing you from getting the vaccine, you can ask to discuss your situation with your employer.  

If you are dismissed because you have not been vaccinated for COVID-19, you may be entitled to challenge your employer’s decision to terminate your employment as per the usual workplace protections against unfair or unlawful dismissals. However, the Fair Work Commission has found that in certain industries, such as child and aged care, it is not unfair or unlawful to dismiss a worker who refused to get vaccinations when they do not have a medical exemption.  Read more about unfair or unlawful dismissals below.   

   To find out if Federal, State or Territory public health directions affect you and your employment, please refer to your relevant government website.

For more information on COVID-19 vaccination rights and obligations in the workplace, visits the Fair Work Ombudsman website.  


Do I have to wear a mask while in the workplace?

From time to time, Australian state and federal governments have implemented emergency measures that require people to wear face masks indoors and/or outdoors. When these emergency measures are in place, they must also be followed at work, unless you have a lawful excuse.  

When no emergency measures are in place, an employer may direct its workers to wear a face mask if, having consulted with employees on health and safety risks, they decide it is necessary to minimise the spread and the risk of exposure to COVID-19. This may apply to you if you work in an industry that has frequent face-to-face contact and physical distancing is difficult to maintain, for example in retail, construction, hospitality, or if you work with those who are most vulnerable COVID-19, such as in health care and aged care. If an employer issues a lawful and reasonable direction, you are required to follow it.    

Employers cannot require you to wear a mask if you have a lawful excuse for not wearing one, such as a medical condition or disability. If this applies to you, it is recommended that you discuss your specific situation with your employer and provide evidence of your lawful excuse for not wearing a mask. 

If you are dismissed despite having a lawful excuse to not wear a mask, you may be entitled to challenge your employer’s decision to terminate your employment as per the usual workplace protections against unfair or unlawful dismissals. Read more about unfair or unlawful dismissals below. 

Losing your job or income

Some employers may experience a downturn in business because of COVID-19 or are forced to close due to a State issued lockdown. This may affect your job or income. We have included below some information to consider if:  

  • your employer reduces or cancels your casual shifts 
  • your employer ‘stands you down’ without pay 
  • your employer terminates your employment 
  • you need to rely on additional financial support because you have lost your job 


Can my employer reduce or
cancel my casual shifts because of COVID-19? 

If you are a casual worker, in most cases your employer may reduce or cancel your shifts with very little notice. If this happens to you because of COVID-19, you should be aware that:  

  • If you have worked for your employer on a casual basis for over 1 year, you may be regarded as a long term casual employee. If this is the case, you may be entitled to ask for flexible working arrangements. 
  • If your work can be carried out at home, you can ask your employer to work from home even as a casual employee. However, it is up to your employer whether they allow you to do so. 
  • If you have worked for your employer for years, you may have accrued long service leave that you can rely on depending on which state or territory you live in. You may need to seek legal advice if you think this applies to you.  


Can my employer stand me down without pay during COVID-19? 

You might get stood down without pay if your employer’s business closes or scales down drastically due to COVID-19.  

A stand down means that you are still employed, but the employer is not required to pay you or give you work during the stand down period. Your employer is only allowed to do this if there is no useful work that you can do, because of a reason that is not the employer’s fault.

A stand down can occur when: 

  • an enforceable government direction requiring the employer to close their business and you cannot be usefully employed elsewhere 
  • a large proportion of the workforce is required to self-quarantine and the remaining employees cannot be usefully employed 
  • if there was a stoppage of work due to a lack of supply for which the employer can’t be held responsible 

Strict rules apply to stand down employees, and if your employer intends to stand you down you should seek legal advice.  

If your employer intends to stand you down, you can negotiate to use any accrued paid leave entitlements you have.  

If you have lost income because of a reason related to COVID-19, you may be eligible for payment from the Australian government. You can check your eligibility online.

 

Can I challenge my employer’s decision to terminate my employment?  

You may be entitled to challenge your employer’s decision to terminate your employment as per the usual workplace protections against unfair or unlawful dismissals 

  • if your employer dismisses you for reasons such as discrimination, taking leave for illness, or exercising a workplace right, you may be entitled to lodge a general protections (dismissal) application with the Fair Work Commission. If you intend to pursue this avenue, this application must be made within 21 days of the date you are dismissed.  
  • if the dismissal is harsh, unjust or unreasonable, and is not a genuine redundancy, you may be entitled to lodge an unfair dismissal application to the Fair Work Commission. Your dismissal is likely to be a genuine redundancy if it is because your employer’s business has closed down. If you intend to pursue this avenue, the application must be made within 21 days of the date you are dismissed. 

Litigation can be a stressful and lengthy process, and we recommend that you seek legal advice before taking any action.

 

If you have a specific legal question that’s not urgent, you can ask a lawyer using our tool Justice Connect Answers.

Please note that Justice Connect Answers can only help with quick legal questions, and does not qualify as an application for comprehensive legal help. If you need ongoing legal help with your problem, the best thing to do is submit an online application.

Ask a lawyer a quick question

  For more information about general protection (dismissal) claims and unfair dismissal claims, please refer to the Fair Work Commission’s website.


What should
be included in my final payment if my employment is terminated? 

If your employment is terminated, your last pay must include any entitlements you have accrued during your employment, including leave entitlements, notice and redundancy payments.  

You can use the Fair Work Ombudman’s Notice and Redundancy Calculator to calculate your notice and redundancy entitlements.    

If you have unpaid employment entitlements, you may wish to read our explainers on how to make a claim for unpaid wages

Extra Resources

Financial supports

Temporary supports are available to help people affected by COVID 19, including:  

  • JobSeeker payments 
  • Early access to superannuation 
  • Rent assistance 
  • Renegotiation of mortgage  

These resources contain information about steps you could could take if you lose your income because of COVID-19:  


Where can I
go for free legal help? 

You can find more helpful resources to help you understand your rights and solve legal problems by following the links below: 

This resource was last updated 26 August 2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.

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