Fury over Aussie boss’ workplace request
Welcome to Sisters In Law, news.com.au's weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn tackle your legal rights when it comes to returning to work post-lockdown.
QUESTION: I work in an office and have been working from home since March. My employer has recently said that they want my team to come back to the office in late July but we will also need to be tested for COVID-19 before we can come back. Are they allowed to force us to take a COVID-19 test? I'm also not sure if I want to go back at the moment anyway - what are my rights if I refuse to go back into the office? - Hayley, SA
ANSWER: These are unprecedented times with employers often required to make decisions to ensure their businesses remain viable while balancing their obligations to treat their employees fairly under the law.
There is a logistic barrier to your employer's request to require you to be tested for COVID-19 before returning to work.
If you are not displaying any COVID-like symptoms, most doctors will be reluctant to administer a COVID-19 test because it is likely to be seen by them as a significant waste of resources.
Your GP may be willing to issue you with a medical certificate clearing you of any COVID-19 symptoms and being fit to return to work, which should suffice for your employer's purposes.
Depending on the industry you are working in, requiring anything other than a medical certificate of this nature in circumstances where you have been unwell or exposed to the virus would likely be unlawful.
We have seen employers in various industries put other restrictions on their employees returning to the workplace.
For example, entry to residential aged care facilities is restricted to those who have had a current flu vaccination. This applies equally to workers and visitors, unless they have suffered anaphylaxis after a previous flu vaccination.
Temperature testing is a more common measure employers are implementing and has been encouraged by various states' chief health officers.
For mandatory temperature testing to be considered lawful, it would need to be as a precondition to entering the workplace.
This therefore still gives employees the ability to provide consent, or make a choice as to whether they agree to their temperature being taken.
Various factors would be taken into account based on the health and safety of employees and consumers, and the level of risk of the business. Aged care, for example, would be a high risk industry due to the vulnerability of patients and a direction for mandatory temperature testing more likely to be seen as lawful.
Further, any temperature testing needs to be done in a way that also adheres to the privacy laws in Australia.
Your temperature is "sensitive information" under the Privacy Act which imposes a range of different obligations on your employer to collect, record and store the information in a certain way.
Before returning to work in the office, it is reasonable for you to ensure and demand that your employer has complied with Safe Work Australia's National COVID-19 principles, which cover things like social distancing and cleaning protocols.
If this hasn't occurred and there is a concern that you will be exposed to COVID-19, thereby creating a risk to your health and safety, you have the right to refuse to work in that unsafe environment.
If there is no risk to your health and safety by returning to work, we encourage you to consider whether you are eligible to submit an application to your employer to work flexibly, that is in your case, working from home.
We don't have enough information to know whether you meet the eligibility requirements, for example, if you have been with your employer for at least 12 months, or if you have carer's responsibilities.
Any request should be in writing, detailing the flexibility required and the rationale behind the request (for example, concerns about a health condition you may have).
The law requires an employer to respond to a request within 21 days. Your employer is not obliged to approve all requests, however, they can only refuse a request on reasonable business grounds.
Grounds that may be a reasonable refusal are things like significant costs involved with the change, you working from home leading to a significant loss of productivity in the business, or you being unable to complete some requirements of your role from home.
If your employer fails to make reasonable adjustments, you may have recourse under anti-discrimination law.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
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Originally published as Fury over Aussie boss' workplace request