When emergencies occur: managing employees in a crisis

Summary

Droughts, bushfires, pandemics and flash flooding - Australian states and territories have been ravaged by naturally occurring events in recent years.

While typically unexpected, these events are a reminder of the importance of preparation when it comes to coordinating your business' response to a crisis or emergency.

From communication and workforce planning to meeting employment obligations, this article explores the things employers should consider to prepare a business in the event of emergency.

Communication is key

Firstly, employers should activate their organisation's crisis communication plan. If it doesn't exist, establish a centralised working group and leverage existing team structures to communicate with key stakeholders including employees and contractors.

When communicating during a crisis, it is critical to address:

• the nature of the crisis
• the employer's immediate response, including any contingencies the employer has in place
• the roles and responsibilities of workers during the crisis, and
• information about the support the employer is offering and details to access any employee assistance programs.

Providing for the short-term needs of employees

For employers and employees affected by an emergency, focus on providing employees with short-term assistance to address their immediate needs. This may be to deal with individual personal circumstances, or to ensure employees can work safely.

Examples of issues for employers to consider include:

• providing access to leave entitlements
• offering alternative working arrangements
• arranging access to premises
• supporting access to other existing entitlements such as insurance, etc.

In some instances, employers may need to consider whether there is a need to stand down employees, particularly if usual business operations cannot continue.

Access to leave entitlements

Employees may not have specific emergency or disaster leave available, but they do have leave entitlements under the National Employment Standards (NES) or their industrial instrument (such as a modern award or enterprise agreement), and they may also have entitlements under their employment contract and/or employer policy.

Types of leave that may be relevant in a time of natural disaster include:

• annual leave or long service leave
• personal/carer's leave
• community service leave, or
• special paid leave.

Annual leave or long service leave

Employers should consider whether they are willing to provide short-term annual leave and long service leave without requiring the usual notice.

Employees may also ask their employers to cash out annual leave or long service leave to assist them financially. Cashing out of leave entitlements can only be done in accordance with the relevant industrial instrument or law. For example:

• in Queensland, cashing out long service leave may be permitted in limited and compassionate circumstances; and
• the NES relating to annual leave has a strict regime relating to cashing out of annual leave.

Personal/carer's leave

An employee may take paid personal/carer's leave if the leave:

• is taken to provide care or support to a member of the employee's immediate family, or a member of the employee's household; and
• if the person requires care or support because of an unexpected emergency.

A natural disaster is the type of unexpected emergency for which paid personal/carer's leave may be provided. Where childcare facilities or schools are closed, employees may be required to care for their children. This too may fall within the definition of an unexpected emergency for the purposes of carer's leave.

As with annual and long service leave entitlements, employers may also be asked to cash out part of an employee's personal leave accrual. This must be done in accordance with the NES (some modern awards and enterprise agreements may have provisions relating to the cashing out of personal leave).

Community service leave

Under the NES, an employee who is working in a voluntary emergency management activity, such as the relevant state emergency service, is entitled to take unpaid leave. This leave may include:

• time off when the employee is engaged in the activity
• reasonable travel time associated with the activity, and
• reasonable rest time immediately following the activity.

Special paid leave

Special paid leave is generally an employer discretionary benefit provided to an employee. It is often in addition to an employee's existing entitlements under the NES, industrial instrument and employment contract.

Alternative working arrangements

Many employers will be familiar with alternative work arrangements since the onset of the pandemic. In this same vein, employees may seek approval to work from home for the short term. Each request should be considered on its merit. However, where employers are considering such a request, they should remember that work occupational health and safety obligations extend to the home workplace.

Other issues such as IT system integrity, confidentiality, insurance and reimbursement of associated costs (such as utility costs) are relevant and should be carefully considered by employers.

If you do not have a working-from-home policy, consider creating one to deal with these and any other relevant issues.

Standing down employees without pay

Standing down of employees without pay may be permitted under the relevant industrial instrument or employment contract.

Where the industrial instrument or employment contract does not provide for standing down an employee, Part 3-5 of the Fair Work Act 2009 (Cth) may apply. Under the Act, an employer may stand down an employee who cannot be usefully employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. This may include closing the workplace due to a power failure or because there is no access to the workplace.

Stand down means that the employee does not receive payment during the stand down period.

Managing health and safety

Finally, employers must be aware of their work health and safety obligations and the risks for employees and other workers in conditions related to an emergency or disaster, which are unlikely to have been considered as part of the business' usual work health and safety management system.

At a minimum, employers should consider the following questions.

• Is it safe to travel to the workplace?
• Can the workplace be safely accessed?
• Are there additional risks in the workplace posed by the consequences of floods or fires (such as damage to building structures and the electrical wiring of buildings or computers, muddy or slippery surfaces, safety of drinking water, etc)?
• How can workers be updated about weather conditions?
• Will workers be undertaking new, different or undefined tasks and, if so, are they trained to do so?
• Are workers trained to participate in any clean up and how can this be adequately supervised?
• Can the need for travel in areas at risk of flooding, fire or other natural disaster be reduced or eliminated?

It is important for employers to consult with workers to identify and control risks and eliminate or reduce hazards as far as is practicable. It is also important to clearly communicate any control measures to all workplace participants, including contractors.

Employers should continue to monitor hazards and risks in changing conditions and regularly communicate to workers about any new risks or hazards that emerge, and the effectiveness of any current control measures.

Also, the psychological and emotional impact on workers should not be underestimated. Where appropriate, employers may consider making counselling available to workers during and following a crisis or incident.

Workplace incidents - hotline help

In the event of a serious workplace injury or fatality, immediate action must be taken. Lander & Rogers' incident response service provides legal advice to employers in the critical moments following a workplace accident or fatality.

This service is available 24 hours a day, seven days a week by calling 0411 111 000.