With the next wave of lockdown restrictions around Melbourne, many business owners are left scratching their heads, rolling their eyes and wracking their nerves about how they can weather the next storm of “if you can work from home, you must work from home” and the recent announcement that schools are back into remote learning.

If you have parents in your workforce, then you have the added complexity of parents needing to stay home to facilitate remote learning and how this will affect your workforce.

In the last round of lockdowns and remote learning, schools remained open for children of essential workers and vulnerable students. The question to be asked is, “what exactly is an essential worker for the purpose of sending your kids to school?”

Essential workers are any workers who cannot work from home, be it a health care worker, teacher, construction worker, supermarket worker or anyone who needs to attend work to do their work. Parents and business owners alike can take some comfort in the knowledge that if the worker has to go to work, schools will still accept students that meet this condition.

So, in essence, if your employees can facilitate remote learning because they are working from home, then that is the advice that should be followed, however if they can’t, then school is still open and an option.

But what if your employees refuse to come to work?

When requests to work from home are made, we do recommend a carefully considered case-by-case approach. Some workers may have the ability to work from home or arrange a more flexible approach to work with their employer. For example, they may be able to break up their day with blocks of home schooling and then working into the evenings or early mornings.

Some workers may be required to attend work to do work, such as frontline workers including health care, construction, retail, and hospitality.

Ultimately, if you need the employee back in the workplace, you can direct the employee to return to work. A refusal to follow a reasonable and lawful direction can be subject to disciplinary action.

If your employees refuse to come back to work because of Covid-19 concerns, what can you do?

Again, we recommend taking a considered and case-by-case approach. If your employees can work from home, then with some robust implementations around your performance expectations and regularly checking in, this should be considered in the first instance.

Further considerations should include the way employees travel to work in whether they travel on public transport and whether the employee has disabilities or carer responsibilities.

If they are home schooling and completely unable to work from home, we suggest coming to an arrangement about allowing them to access annual leave (at half pay under some awards or JobKeeper enabled directions) or accessing unpaid leave.

Under the Fair Work Act, these employees are able to put in a formal request for flexible working arrangements, which can only be refused on reasonable business grounds. We do recommend you seek advice before refusing any requests, because it can give rise to general protections claims.

If an employee is not meeting their deliverables while working from home, you do still have a right to manage their performance, however again, we do advise to proceed with caution.

There is a risk in discriminating against workers because they have children and being excessively harsh during these times could end up being thrashed out in the Fair Work Commission.

Remember, that the health and safety of your employees is still your obligation, so implementing a COVIDSafe plan for your workplace should help alleviate some concerns that employees have around returning to work. Take a reasonable approach, understanding and addressing your employees’ individual concerns.

A lot of employers are currently dealing with employees who are refusing to come to work because they would rather receive JobKeeper and not work at all. According to the Fair Work Ombudsman, unpaid leave is an agreement between the employer and the employee and not an entitlement. If you have useful duties for the employee and they do not have a reason not to attend work (other than not wanting to), then you would have grounds to take appropriate disciplinary measures because they are refusing to follow a reasonable and lawful request.

We also did a Facebook LIVE on this very topic you can watch it 👉 here.

We will get through this, but understanding what to do and when can be pretty grey during unprecedented times. If you need assistance navigating how to best manage requests for flexible work arrangements during lockdown 2.0, please reach out to us for further support or alternatively check out our Flexible & Remote Learning Pack here.

The information contained in this blog is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact HR Gurus on 1300 959 560.

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