The outbreak of the Coronavirus has presented significant challenges for employers, schools and universities balancing their duty of care with their occupational health and safety and anti-discrimination obligations. Perhaps unsurprisingly, requests for individuals who have recently visited China (and in some cases, any country where there has been cases of coronavirus) to remain home for 14 days, has led to an increase in complaints of racism and discrimination.
This article explores the relevant obligations for employers and educational organisations, and sets out our practical tips for balancing competing obligations.
What is coronavirus?
Coronavirus (2019-nCOV or novel coronavirus) is a new strain of coronavirus that had previously not been identified in humans. Coronaviruses are a large family of viruses that cause a range of illnesses from the common cold to more severe diseases such as MERS and SARS.
The outbreak of the novel coronavirus is reported to have originated in Wuhan, China in December 2019. It is suspected to have been transmitted from animals. It causes cold like symptoms such as fever and cough but can progress into pneumonia, kidney failure and breathing difficulties.
As of 10 February 2020, the Federal Government reported that there have been 37,562 confirmed cases of coronavirus and 813 reported deaths. The fatality rate is currently 2.16%. In Australia, the Federal Government reported 15 confirmed cases as of 7 February 2020 (no deaths).
What are the Australian Government requirements?
Previously, the Australian government was requiring that individuals who had visited Wuhan or had been in contact with individuals who had a confirmed case of novel coronavirus isolate themselves for 14 days. On 1 February 2020, this was expanded given an increasing risk.
As of 10 February 2020, the Australian Government issued an alert with the following requirements:
- if you have travelled to Hubei Province within the past 14 days, you must isolate yourself for 14 days after leaving Hubei Province;
- if you have left or transited through mainland China on or after 1 February 2020, you must isolate yourself for14 days after leaving China; and
- if you have been in close contact with a confirmed case of novel coronavirus, you must isolate yourself for 14 days after last contact with the confirmed case.
These requirements apply to students attending childcare, school or higher education. There are also travel restrictions for individuals who have left mainland China only on or after 1 February 2020.
As at 10 February 2020, isolation is not required yourself if you:
- left mainland China before 1 February 2020 and did not travel in Hubei Province; and
- have only travelled in Hong Kong, Macau and Taiwan.
What are our obligations to protect our students and staff from coronavirus?
Employers and educational authorities have a duty of care to students and staff, and legal obligations to maintain a safe learning and working environment. This is also reflected in common law and generally seen to be an implied term of the employment contract.
However, organisations need to be careful that any safeguards put in place are reasonable and necessary to mitigate the risks, and do not breach of anti-discrimination laws. For example, blanket bans on individuals from mainland China or affected countries attending work or school are unlikely to be reasonable, and create a risk of discrimination claims.
What are the risks?
Organisations need to be aware of several risks other than health and safety including discrimination, underpayment and failure to educate claims.
Organisations should only impose health and safety restrictions consistent with departmental guidelines, as the failure to do so could lead to discrimination claims. For example, a NSW school is facing scrutiny for asking a year 10 student from South Korea to leave her dorm at a boarding school. The international student had not travelled to China but was asked to leave as the school decided to ask all students who had recently travelled to “other affected areas” to not attend the school for 14 days.
It is also important to note that the governmental restrictions only apply to individuals who have transited through mainland China on or after 1 February 2020. For schools, this quarantine may have little effect since most students should have returned to Australia before 1 February 2020.
If an employee or student is required to quarantine themselves for 14 days (in accordance with governmental guidelines), organisations will still need to comply with their other obligations. For employers, support should be provided in terms of allowing the employee to work from home if possible or providing them with different leave options. Personal leave is available not just when an employee is unwell, but when the employee is caring for a family or household member who is affected by an unexpected emergency.
For schools, the student should be given homework or remote learning opportunities to avoid failure to educate claims. For international boarders, schools will need to assist in organising alternative accommodation if they are unable to stay in the boarding house.
What should we do?
Australia has close ties with China and several other countries affected by the coronavirus. Many organisations and schools will have employees or students who have been personally affected by the coronavirus or have family members who are. Care and sensitivity is crucial to supporting those affected.
At a minimum, we recommend that organisations take the following steps.
- Assign an employee (e.g. OHS representative or HR manager) to regularly review guidance from the Australian Government on restrictions and safeguards in place to ensure that any organisational procedures are reasonable and up to date.
- Put in place incubation periods for employees and students in accordance with governmental restrictions. This should be clearly communicated and organisations should consider the support that they can provide such as allowing the employee to work from home or providing course work online to students.
- Ensure your communication is based on recent travel not race to align with governmental restrictions. Any communication should avoid generalisations or assumptions which could be seen as racially discriminatory.
- Respond swiftly to any complaints by employees or students of vilification or racism and provide support as needed. It is important that organisations are mindful of vicarious liability risks and the positive obligations that apply to prevent discrimination.
How we can help
For more information or guidance regarding your obligations please contact our expert team. Practice Leader, Skye Rose and Lawyer, Rena Ou Yang can be contacted on (03) 9843 2100 or alternatively you can fill out the enquiry form below.