Can You Refuse To Return To Work After Coronavirus Restrictions Ease?

As Australia’s infection rate continues to fall and coronavirus restrictions ease, some workplaces have decided to re-open, leaving workers with the task of commuting back into the office.

While there might have been some initial hiccups, many who have been forced to work from home have started to enjoy it somewhat. Frustration with long, crowded commutes and noisy open offices has been replaced with the joy of an actual sleep-in and a proper lunch break. Of course, there are downsides too — feeling socially and physically isolated and generally unproductive. It’s these niggling issues that often remind us of the need for a work office in some form.

As workplaces in cities and towns begin to open back up, we’ll be plucked from the comforts of our homes and placed into increasingly-crowded buses, trains and ferries. With the threat of a coworker or fellow commuter being an asymptomatic carrier, people are feeling very paranoid at the prospect of returning.

Given this reality, we asked three legal experts around the country whether employees could legally refuse to head back into the office until the COVID-19 threat is over.

Chris Boundy from Legal Services Commission of South Australia told Lifehacker Australia that you might have to return if it’s a reasonable request.

“Generally speaking it’s considered reasonable for an employer to direct an employee to return to the workplace if necessary safety precautions are in place. For example, those precautions may include measures relating to social distancing, cleaning and hygiene, or the supply of personal protective equipment. It’s all part of the employer’s obligation to create a safe work environment,” Boundy told Lifehacker Australia over email.

“It is not illegal for an employee to refuse to return to a workplace if they have reasonable concerns regarding their exposure to COVID-19. If an employee wants to continue working from home, in many cases there is the scope for them to negotiate with their employer to find arrangements that suit the individual employee and the workplace.”

JobWatch‘s Executive Director Zana Bytheway said that employment contracts allow your employers to make you go to work but there could be exceptions given the unprecedented nature of the coronavirus crisis.

“Essentially an employee cannot refuse because it’s a lawful unreasonable direction under the contract,” Bytheway said to Lifehacker Australia over the phone.

“However, in this particular climate, there are issues of occupational health and safety, issues of infection and so returning to work, in these circumstances when you’re looking at the reasonableness of it, needs to be safe.”

The issue might not just the workplace’s safety, given the real risk of a single infected commuter spreading the virus to others who then arrive at work and unwittingly spread it even further. Bytheway said while this didn’t fall under a workplace health and safety issue, it was something employers would need to take into account.

“We all need to be cognisant of all these safety guidelines and state public health orders they need to be complied with, and that all needs to be factored into whether, in fact, returning to work is in all the circumstances reasonable,” Bytheway said.

“Working from home has worked so well that it’d be really hard to argue that someone needs to come into work.”

But Michael Geelhoed, a solicitor for the Employment Law Centre of Western Australia said some things varied state to state depending on local health and safety laws.

“Because our current situation is unusual, it’s hard to give a definite answer about what will be considered safe. It will also depend on the job that you do and the industry you work in. Recommendations from the federal government and state safety regulators — like WorkSafe WA — are probably the best guidelines we have,” Geelhoed said.

“For example, WorkSafe WA states that social distancing should be implemented ‘as far as practicable’ following a risk assessment, and that non-essential services should be discontinued if risks cannot be reduced.”

Geelhoed recommends any employees wanting to check on their legal rights should call WA’s WorkSafe or get in touch with The Employment Law Centre.

In essence, the reality is you can be asked to return to work and provided you’re not in an at-risk group for coronavirus and the request is reasonable, you’ll have to follow that order or face potentially serious consequences.

Those in the at-risk category, according to healthdirect, include people aged 70 or over as well as anyone with weakened immune systems or diagnosed chronic medical conditions.

Ideally, employers will see the benefits of working from home for now and the real risks many Australians will face when returning to crowded commutes. A little leniency and flexibility will go a long way.


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