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Q&A resources about workers' rights in COVID-19

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COVID-19 Lockdowns and Employment Rights Q&As

The following Q&A is for employees whose employment is affected by lockdowns due to public health orders to control the spread of COVID-19. This information is accurate as at 1 October 2021. Updates will be provided as further information becomes available.

Disclaimer

This Q&A contains information of a general nature only and is not a substitute for professional legal advice. You should obtain legal advice from a lawyer about your particular situation before acting on any of the following information. This Q&A is designed for Victorian and national system employees in Tasmania and Queensland only. If you are not a Victorian employee or a Queensland or Tasmanian national system employee, you should obtain specialist legal advice about your case as soon as possible.

For more information on what is most appropriate in your situation, contact JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro).

What if my employer is forced to close?

Under the different levels of lockdown mandated by public health orders to control the spread of COVID-19, only specified business activities are permitted. This list changes frequently, so you should check your state or territory’s Department of Health website for more information.

If your employer is forced to cease operating due to circumstances out of their control, such as a government directive, and they can no longer usefully employ you, they may have grounds to stand you down. This normally means they are not obliged to pay you.

Importantly, a significant downturn in business, does not generally mean that your employer can stand you down with no pay.

If you have been stood down but you believe your employer does not have to stand you down because of an enforceable government direction, you can lodge a dispute with the Fair Work Commission. Call JobWatch for more information.

Can I still get paid if I must isolate or quarantine?

Some people may be directed by health authorities to self-isolate or quarantine due to diagnosis of or potential exposure to COVID-19.

If you cannot work from home and you are not sick while you are in isolation or in quarantine, you should check if you are covered by a modern award, enterprise agreement or a contract that says you will still get paid during this period. If you cannot find something in writing about this, your employer may not have a legal obligation to pay you, but you may come to an agreement with them about this.

Currently there are different government support payments available if you can’t earn any income whilst self-isolating, depending on your circumstances. Check your state or territory’s Department of Health website for more information, or contact Services Australia.

Can I use my sick leave if I am unable to work?

If you are sick and you are a permanent employee, you can use your paid personal leave (sick leave). You may need to give your employer a medical certificate or statutory declaration as evidence that you are entitled to take sick leave.

All permanent employees receive a minimum of 10 days of paid personal leave for each year they work. Personal leave can be used as sick leave or carer’s leave. Any part of your personal leave that you do not use rolls over each year.

You may get more than 10 days of personal leave per year if provided for in your modern award, enterprise agreement or contract.

What if I need to care for someone else who must isolate?

You can take time off work to care for someone in your immediate family or household if they are sick from COVID-19.

If you are a permanent employee, you can use paid carer’s leave. There may be other options for you to be paid if you do not have carer’s leave, such as using other paid leave or special leave.

Employees without paid carer’s leave, or employees who have exhausted their paid leave entitlements, are entitled to two days of unpaid carer’s leave for each occasion when a family or household member needs care or support because of an illness or unexpected emergency.

If you are caring for a child who must isolate, but cannot get paid leave from work, you may be eligible for other government support payments. Check your state or territory’s Department of Health website for more information, or contact Services Australia.

What if I have to care for my children?

Many workers will need to care for children at home while schools and childcare centres are closed. If you have paid personal/carer’s leave you may use this to care for a family member who needs care because of an unexpected emergency.

Under the Fair Work Act 2009, parents and carers have the right to request flexible working arrangements, such as changing the times they work. Employers also have obligations under anti-discrimination law to accommodate family or carer responsibilities.

What are my rights as a casual worker?

If you are a casual employee, you are not entitled to paid personal leave or annual leave.

If you need to care for someone who is sick, you are entitled to take up to two days of unpaid carer’s leave for each occasion. You will still have to comply with your employer’s notice and evidence requirements for taking that leave.

There are different government support payments available if you are unable to earn any income due to self-isolating, depending on your circumstances. Check your state or territory’s Department of Health website for more information, or contact Services Australia.

Can I work from home if I am required to isolate?

Under certain lockdown restrictions, anyone who can work from home must do this. During these lockdowns, employers must allow employees to work from home where this is possible. Whether you can work from home or not will depend on the type of work you do and your circumstances.

Do I have to go to work?

You can refuse to do unsafe work. Whether this means you can work from home or not will depend on the type of work you do and your circumstances. Under current lockdown restrictions, anyone who can work from home must do so.

If it is not possible to do your job from home, your employer may direct you to attend work. You must follow your employer’s directions if they are lawful and reasonable. What is lawful and reasonable in a workplace depends on a range of different factors, including the nature of the workplace.

For a direction to attend work to be lawful and reasonable, among other things, it must be safe. For example, if you are required by a government direction to isolate or quarantine, your employer cannot ask you to ignore that direction and attend the workplace.

If you think your employer’s direction to attend a workplace may not be lawful or reasonable or may be making your workplace unsafe for any reason, contact JobWatch or WorkSafe in your state or territory.

Do I have to work from home?

Your employer must comply with workplace health and safety laws, as well as the rules about COVID-19 lockdown restrictions.

You must comply with lawful and reasonable directions from your employer. If you don’t think your employer’s direction to work from home is both lawful and reasonable during the current lockdown restrictions, contact JobWatch.

What if I can’t work from home and can’t go to work?

If your employer tells you to stay at home but you cannot work from home, in some circumstances you might be entitled to be paid your ordinary pay. Your employer should keep paying your ordinary pay if you are ready, willing and able to work and it is not reasonable to ask you to use your leave entitlements, such as annual leave.

However, your employer may not be required to pay you if you are lawfully stood down, that is, where the employer cannot usefully employ you because work has stopped for a cause beyond the employer’s control, for example, if the business is required by law to close. The Fair Work Commission can hear disputes about stand downs.

If your employer refuses to pay you when they should, you can get help from the Fair Work Ombudsman. Call JobWatch for more information.

Do I have to wear a mask at work?

Under certain lockdown restrictions, you must wear a fitted face covering when you leave home, including when you are at work, unless you have a lawful excuse not to wear one.

For more information about these rules, visit your state or territory’s Department of Health website.

Does my employer have to provide protective equipment in my workplace?

Employers and employees must take all reasonable steps to make sure that the workplace is safe for everyone. This includes working from home. Employers must ensure that employees are able to comply with all lockdown rules including face-covering, social distancing and hand hygiene.

Depending on the workplace, reasonable steps to ensure workplaces are safe may also include the provision of hand sanitiser, screens and other equipment.

If you think your workplace may be unsafe, contact JobWatch or WorkSafe in your state or territory.

Is temperature-testing at work allowed (e.g. with a thermal scanner)?

If your employer directs you to have a heat (temperature) test at work, this should be obeyed as, in the context of the COVID-19 pandemic, it is likely to be a lawful and reasonable direction. If you fail the heat test and you are directed to stay at home, consider whether you are eligible for paid personal leave or whether your employer will allow you to work from home. For more information contact JobWatch or the Fair Work Ombudsman.

Can my employer ask for a medical clearance before I return to work?

Your employer can ask you to provide a medical clearance if that is lawful and reasonable in your situation. For example, if a medical clearance is needed to protect you or your co-workers’ health and safety, then it is likely to be reasonable.

It might not be reasonable for your employer to ask you to provide a medical clearance if this is not necessary to comply with health and safety obligations, for example, you are not required to self-isolate, or you are healthy and able to work.

For more information contact JobWatch or the Fair Work Ombudsman.

I think I’ve been discriminated against because I have had COVID-19. What can I do about it?

It is unlawful for an employer (or a principal) to discriminate against an employee (or an independent contractor) because of a physical disability. Both state and federal laws protect workers against this kind of discrimination.

A physical disability includes a temporary or permanent disability, disease, illness or medical condition. The discrimination may occur on the basis of a disability which you have now, you have had in the past, you are believed to have had or you may have in the future.

Under anti-discrimination laws, employers have an obligation to make reasonable adjustments to accommodate an employee’s disability. However, if the employee still cannot perform the inherent requirements of the job, even with reasonable adjustments, then it is not unlawful for the employer to discriminate against the employee on the basis of physical disability.

There are also other circumstances when it will not be unlawful for an employer to discriminate against an employee on the basis of a disability. For example, if there is a risk to your (or other people’s) health or safety and the discriminatory measures are needed to protect you or the other people in your workplace.

People with a personal connection with someone with a physical disability (e.g. family members, friends or co-workers) may also be protected from being discriminated against because of that relationship or connection.

If you feel that you have been discriminated against, you may be eligible to make a claim in more than one jurisdiction. However, usually you are only entitled to make one claim, so you need to decide which jurisdiction is best for you.

To help you decide which claim is best for your particular circumstances, you may contact the following agencies or consult their websites to understand more about their processes and the laws that govern their particular jurisdiction

  • Australian Human Rights Commission
  • Your state or territory anti-discrimination agency (e.g. the Victorian Equal Opportunity and Human Rights Commission, Equal Opportunity Tasmania or the Queensland Human Rights Commission)
  • The Fair Work Commission, in relation to a possible unfair dismissal claim or a general protections dispute (which may or may not involve a dismissal).

I got a new job but the start date has been delayed because of a lockdown. Can my new employer do that?

If you have a written or verbal contract of employment as a permanent employee (full-time or part-time) with an agreed start date and your employer asks you to agree to a delayed start date, these are your options:

  • You agree to the delay, which means you agree to a variation of your contract; or
  • You don’t agree. If you don’t agree, your employer should still pay you from the commencement date even though you haven’t started working.

If your employer doesn’t pay you, you may write to the employer and complain about not being paid. If your employer withdraws the offer of employment because of your complaint, consider lodging a General Protections Dispute application with the Fair Work Commission. Ultimately you have 6 years within which to file an underpayment of wages claim. However, you should also consider the possibility that the employer may choose to terminate your employment before the start date if you don’t agree to a delayed start date. Provided they pay you in lieu of your minimum notice period, they will probably not be in breach of the employment contract.

If you have an agreement to start as a casual employee, your prospective employer can legally delay your start date due to a lack of work.

For more information on what is most appropriate in your situation, contact JobWatch’s Telephone Information Service on 1800 331 617 (Regional VIC, QLD, TAS) or 03 9662 1933 (Melbourne Metro).

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