OPINION PIECE - The COVID-19 pandemic has placed immense strain on the economy and raises complex legal problems for registered National Disability Insurance Scheme (NDIS) providers.
There are a number of key legal issues impacting NDIS providers, including risk management, regulatory compliance and other obligations in response to COVID-19.
In collaboration with MPS Law, articles in a new series will discuss commercial leases, contract disputes, business continuity and the NDIS Practice Standards.
This article covers workplace health and safety risks, and employment considerations for NDIS providers during the COVID-19 outbreak.
Workplace health and safety
Businesses delivering NDIS funded supports and services directly to clients, as well as those working remotely, need to consider the workplace health and safety issues that arise for their staff (including those working at home). Depending on the services you are delivering and how they are delivered the considerations may be different.
Providers delivering essential services
In circumstances where staff are required to attend the workplace, providers should consider:
How to ensure continuity of services, including ‘Option B’ arrangements to use hire agency staff if there are staff shortages or a particular person needs to self-isolate.
Reviewing policies and procedures that may apply differently during COVID-19, including those that govern health, safety and wellbeing and those involving obligations under the NDIS Practice Standards that relate to privacy and dignity of risk.
Requiring the disclosure of potential exposure to COVID-19 by staff and clients including if they, or someone in their household is diagnosed or suspected to have COVID-19 or if they have been in contact with a confirmed case.
How to reduce the risk of accidental transmission and facilitate contact tracing by ensuring the same staff member provides services to a particular client (to the extent possible).
Providers working in residential facilities with clients with complex or challenging behaviours should also consider how to appropriately isolate someone that may be infected, using the least restrictive form of restraint possible.
If you deliver services in the home, you will need to assess how to manage risks to staff and participant safety in an uncontrolled environment.
Managing safety in an uncontrolled environment should include providing Personal Protective Equipment (PPE) such as disposable gloves and masks, if available, directions to staff to implement infection control protocols and guidance to clients about proper cleaning processes.
For clients who are not able to do this, you may need to consider whether their NDIS plan accommodates additional hours for cleaning.
Employers have a duty to provide a working environment for employees that is safe and without risks to health.
Employers must take steps to control any new risks that arise when an employee works remotely. In particular, employers must provide a system of work that includes effective communication with the worker.
Significant changes in the work environment, routines and duties create risks to employees’ psychological health which can be compounded by broader COVID-19 events.
An employee’s new home workplace may be more isolated than their usual workplace and may generate unexpected stresses and feelings of loneliness.
It is recommended that appropriate policies and processes are implemented as a matter of priority to reduce the risks of working remotely.
Staffing, employment law and duties to staff
Changes to employment awards
Personal leave is available where a person is ‘not fit for work because of a personal illness’.
An employee who is self-isolating but is not displaying any symptoms (has not tested positive to COVID-19) is not considered to be unfit for work ‘because of personal illness’.
On 8 April 2020, the Fair Work Commission varied a number of employment awards, including the Social, Community, Home Care and Disability Services Industry Award to:
Introduce unpaid ‘pandemic leave’ for staff who are required to self-isolate or otherwise prevented from attending work by government measures taken in response to COVID-19.
Allow staff to take annual leave at half pay.
This follows previous changes to the Clerks-Private Sector Award which now allows employers to direct employees in roles that are mostly administrative or clerical in nature to take annual leave. It also allows them to create greater flexibility around work hours and across classifications.
Requests to ‘cash out’ leave
Staff may seek to ‘cash out’ annual and long service leave entitlements during COVID-19.
Depending on what state you live in you may only be able to cash out annual leave and not long service leave.
Legislation in Victoria, NSW, ACT and the Northern Territory does not allow long service leave to be cashed out, whereas in WA, SA, Tasmania and Queensland, it may be cashed out (subject to any requirements under legislation that applies in each jurisdiction).
Employees and employers can agree to cash out of annual leave. If the cash out is agreed, the following rules generally apply:
There will be a minimum amount of annual leave an employee must have remaining after the cash out (typically four weeks);
An employer must not force or pressure an employee to cash out annual leave or knowingly misrepresent the employee’s workplace rights; and
Each instance of cashing leave out must be agreed to separately, in writing.
If an employee is covered by enterprise agreement or a modern award, annual leave can only be cashed out in accordance with that enterprise agreement or modern award. If the enterprise agreement or modern award does not contain cashing out provisions you are unable to cash out the annual leave.
Managing requests for leave during the pandemic
Some staff may request to take leave in advance of it accruing. This may present challenges for employers who want to support their employees, but do not have the cash flow (and perhaps staff) to approve all leave requests. Generally, leave can be taken in advance if the employer and employee agree. Under the Fair Work Act 2009 (Cth) (FWA), an employer must not ‘unreasonably refuse’ a request for accrued annual leave.
Whether denying a request is ‘unreasonable’ will depend on the circumstances of each request, including the employee’s role, the reason for the request and the employer’s operations.
Standing down staff due to a stoppage or deterioration of work
During COVID-19 employers are making decisions about the running of their businesses, including undertaking work stoppages.
Under section 524 of the FWA, staff can be stood down if they cannot be usefully employed due to a “stoppage” of work that the employer cannot reasonably be held responsible for.
On 8 April 2020, amendments to the FWA were passed that allow employers to change the duties, location or time of work for employees receiving the JobKeeper payment.
Eligible employers may also issue a “JobKeeper enabling stand down direction” requiring staff not to work on normal work days, work for a lesser period than normal or for a reduced number of hours.
The employer must reasonably believe that the direction is necessary to continue the employment of one or more staff and the employee cannot be usefully employed during the normal days or hours of the stand down period. Such directions will not apply if unreasonable in the circumstances. Consultation obligations also apply.
During a stand down period, employers may allow employees to use accrued annual leave, rostered days off or long service leave entitlements (if applicable) and employees will continue to accrue leave entitlements as usual and be entitled to be paid for public holidays.
Some employment agreements require that staff obtain permission before accepting work with another employer. The circumstances in which permission is required and when it is appropriate to withhold permission depend on the terms of the agreement and the nature of the employment to be obtained. If permission is withheld, disputes are managed according the process set out in the employment agreement.
Providers may have service agreements and arrangements with third parties that are directly affected by the closure of, or restrictions on, entry to certain facilities. However, a lack of work or a deterioration in business conditions is not grounds for a stand down; a direct causal link between the suspension or cessation of the contract/service agreement is required. If stood down unlawfully, employees can claim for recovery of unpaid wages.
Enterprise agreements, modern awards and employment contracts can have different or extra rules about when an employer can stand down employees without pay. As a result, it would be wise to seek advice before making any decision to stand down staff.
This commentary is general in nature and provided for informational purposes only. It is not intended to be comprehensive and does not constitute legal advice. You should seek legal or other professional advice or consult with the appropriate government authority if you are unsure about how the issues raised in this commentary apply to the circumstances of your business.
Kai Sinor is a legal practitioner and former Assistant Director for Compliance at the NDIS Quality and Safeguards Commission. He specialises in regulatory matters and has worked across a variety of social justice and regulatory issues for the past decade. Kai is a Senior Lawyer at MPS Law, where he provides legal services to NDIS providers on compliance, corporate and commercial matters.