COVID-19: My employee refuses to come into work -now what?
Here we will explore the employer’s rights to direct an employee to come to work despite fears related to COVID-19?
There’s a common scenario many employers are experiencing right now.
The phone rings and it’s an employee who sounds rather worried. The employee tells you they don’t want to come to work due to fears around being exposed to COVID-19.
However, the employee doesn’t have the luxury of working from home and must catch public transport to work. Despite telling the employee that the business is taking all precautions it possibly can, nothing you say can soothe the employee’s worries.
As an employer, what are your legal rights in requesting an employee to come to work despite their fears related to COVID-19?
That’s the question posed by Dean Tyler, Senior Associate, Australian Business Lawyers & Advisors (ABLA).
“Legally, an employer can direct an employee to perform work so long as that direction is lawful and reasonable in the circumstances,” said Tyler.
“The ‘lawfulness’ of a direction does not depend upon the existence of a discernible, written rule of law supporting that very order or direction.
“This is because a direction given to an employee is lawful to the extent that it falls reasonably within the scope of the employee’s service, and the direction is not in direct conflict with a written law or rule.”
Tyler explained that whether a direction is reasonable will depend on many factors, including the nature of the workplace and industry, the work the employee performs as regulated by their contract of employment and job description, the application of any modern award or enterprise agreement and the established custom and practice in the workplace.
In particular, he said, it’s important that industrial instruments and contracts of employment are carefully reviewed.
“While these types of instruments do not create the employer’s rights to run their business, they do condition how those rights are to be exercised,” he said.
“Also, directing someone to do tasks entirely unrelated to their position description may not be reasonable without their agreement and could warrant a constructive dismissal.”
Can an employee insist the worker return?
As the employer, you must first ensure you’ve taken all reasonable steps to provide and maintain a safe working environment.
In other words, a workplace that is consistent with an employer’s duty under the relevant state WHS legislation. Tyler said that what constitutes reasonable steps will “depend on the individual workplace”.
However, such steps may include ensuring all personal protective equipment required is available to the employees, regularly disinfecting work areas, establishing and training staff in proper social distancing rules; and making hand sanitiser available to all staff.
If you have taken all these steps and believe there is nothing more you could reasonably do to make the workplace safe, what happens if the employee is still saying no?
An employee’s fear may be quite understandable, and you should ask them some questions about why they feel uncomfortable to return to the workplace.
For example, they might have a pre-existing condition that makes them more susceptible to COVID-19 or puts them in a higher risk category if they do get COVID.
Tyler offered the example that directing a healthy 25-year-old employee to work in an office is likely to be more reasonable than directing a 60-year-old asthmatic to work in a hospital.
“This is because COVID-19 does present as a greater threat to those with medical conditions, compromised immune systems, and individuals falling into the 60+ age range,” said Tyler
“What makes a direction lawful and reasonable rests on the facts and circumstances of each case, and the employee’s personal circumstances are relevant.”
What happens if the employee is still refusing?
According to Tyler, if all the above steps have been undertaken, you believe you have lawful and reasonable grounds to direct an employee to work, but the employee still refuses to come to work, then you can proceed down the disciplinary path.
“Obviously, this is not a position an employer wants to find itself in, but it may be left with no other option,” said Tyler.“Compliance with a lawful and reasonable direction is a key part of an employment contract.“Refusing to carry out a reasonable and lawful instruction that is consistent with the employee’s contract of employment can be grounds for termination for serious misconduct under the Fair Work Regulations, and usually grounds for termination under most contracts of employment.
”However, Tyler advises that before taking such action, make sure that you have done all you can to allay the employee’s fears, and explained to them that if they don’t comply, they are putting their employment in jeopardy.
“You cannot remove the risk of unfair dismissal against your business,” said Tyler.
“However, as long as you are satisfied you have taken all of the above steps for legitimate non-discriminatory reasons, you will usually be best placed to mount a solid defence against a claim.”
Dean Tyler is a Senior Associate at Australian Business Lawyers & Advisors (ABLA)

How are employees coping during COVID-19? Here are some positive study results.
Employees throughout Australia are increasingly satisfied with their organisations’ response to the COVID-19 crisis, with 39% saying the support they’ve received has improved since the pandemic first began, according to MetLife Australia.
MetLife Australia commissioned the research to better understand the impact of employers’ COVID-19 responses on the financial, physical and mental wellbeing of Australians during the pandemic.
The study revealed that 78% of people rated their employers’ response as good, very good or excellent, with the freedom and trust to work from home and regular communication key drivers of satisfaction.
Interestingly, there was a strong correlation between an employer’s COVID-19 response and an individual’s overall health and wellbeing rating.
Moreover, 39% of employees who reported a positive response claim it made them feel more loyal to their employer.
However, some Australian workers are still hesitant to take full advantage of the employer support available to them, with a third (33%) feeling there is a stigma associated with getting mental health support from their employer, and almost one in three (29%) believing the information shared through workplace mental health programs may be used against them.
Allyson Carlile, Head of People and Culture at MetLife Australia, said these misconceptions suggest employers have an opportunity to better communicate the benefits of their support offerings and increase trust among employees.
“Opening up about mental health concerns can be difficult at the best of times. But in the midst of a global pandemic and with all the uncertainty that people have been facing over the past few months, it’s more important than ever that Australians are comfortable accessing the support available to them,” said Carlile.
“On the whole, employers have been doing an excellent job of supporting their workers during this difficult time, and that’s reflected in the number of individuals who report feeling satisfied with their employer’s response to the crisis.
“But the reluctance by some Australians to take full advantage of the mental health tools on offer through their workplace suggests there is still work to be done.”
As the lockdown restrictions begin to ease across Australia, employers are facing a new challenge – how to best support their employees as they make the transition back to the workplace.
The research found that workers wanted their employer to provide a clearly defined transition plan, involve staff members in the consultation process and listen to their responses, ensure the work environment was safe and generally be open minded and flexible with regards to new ways of working.
“The transition from home back to the workplace will be an anxious one for many. The best thing employers can do during this time is ensure their staff feel supported and heard by providing regular, open communication every step of the way, and consulting with them on return to workplace plans,” said Carlile.
5 Tips to Help you Lead and Experiment during a Crisis.
As a leader, during COVID-19 (or any crisis) it can be hard to find your feet and to feel confident in your path. You may feel inadequate, unsure and out of your depth. That is to be expected. This is leadership like we have never seen before. So many businesses are closed or trying to find new ways of doing things. I believe almost every organization feels like a start-up right now. Uncertain times need new kinds of leadership. We don’t have the answers, only questions, and still we are asked to be leaders. Being experimental in your leadership approach will help you try things, learn from them, and figure out your next experiment. These tips will help you find a new centre for yourself as a leader:
You are not responsible |It should go without saying, but this is not your fault. This is a global challenge that doesn’t have clear answers. Your people may want you to have answers, but you won’t and you can’t. They will want certainty about their jobs, their income, and their lives. You can’t promise them the future. Encourage them to do their job today and let them know you have compassion but cannot be the answer to their future.  Give up being an all knowing leader and be human. Practice compassion and be collaborative to help your team make sense of the crazy.
Get bad news out of the way fast |If you have lay-offs and reorgs to do, do it quickly. Make a plan – even if it is a bad plan and clear this from your “to do” list. You will be a better leader with clarity. Kudos if you can be compassionate while you do it. There are some businesses that will not survive this. Don’t hide your head in the sand like an ostrich. Embrace information and communication even if it is bad news. Work on being a good leader in bad times. Figure out what being a good leader means to you. Kindness goes along way when you are delivering bad news.
 Think about timeline |What is important 1 week from now? What is important 1 month from now? What is important 1 year from now? Some organizations need to be extending their timeline (How will we emerge from this crisis?) while others are busy changing to meet day to day needs (What do our clients need today?). Make sure to orient your thinking daily and consider multiple time frames. Make time to consider your leadership path before you face a day of decision making and are faced with the feelings and challenges of others. Find your own true north as a leader.
Be kind and firm |Your team members may be spinning and scared. Be empathetic and then ask them to get back to their jobs and produce good work. Having meaningful work is a privilege in these times and you can ask them to be achievers right now, today. You can deliver groundedness and purpose as long as they are working. There can be compassion for the challenges they face (kids at home, new environment, etc). Your insistence on them delivering work is part of the work of leadership right now.
 Practice extreme self-care |You are your own strongest asset. Experiment to strengthen your physical, mental, emotional, and spiritual health. Reach for the salad and smoothies instead of the martinis and chocolate cake. Exercise. Sleep. Meditate if that works for you. Journal or sit and think. Pause. Ask for help and love from friends. Schedule a virtual happy hour with friends or colleagues. Try and go deeper than you ever have before with your self-care. You have never needed to care for yourself as you do today. Experiment with giving yourself what you need.
You will get through this. You will learn from this. You will do your best and you will do your worst in this. As an experimental leader it is important that you stay engaged in the struggle of leadership. Try and fail and dust yourself off. Figure out the change you want to see and what the barriers are. Figure out an experiment. Collect data. Figure out what you just learned. Ask, “What is my next experiment?” Go experiment again.
Melanie Parish is a public speaker, author, and Master Coach. An expert in problem solving, constraints management, operations, and brand development, Melanie has consulted and coached organizations ranging from the Fortune 50 to IT start-ups. She is the author of The Experimental Leader: Be A New Kind of Boss to Cultivate an Organization of Innovators. For more information, please visit, and connect with her on Twitter@melanieparish
Top Priorities for HR Leaders.
“As the COVID-19 crisis disrupts organisations across the globe, HR leaders must respond quickly and comprehensively, considering both immediate and long-term talent consequences,” said Brian Kropp, chief of research for the Gartner HR practice.
The vast majority (88%) of organisations have encouraged or required employees to work from home, regardless of whether or not they showed coronavirus-related symptoms, according to a Gartner survey of 800 global HR professionals.
Moreover, nearly all organisations (97%) have cancelled work-related travel, more than an 80% increase since March 3.
To manage remote talent during the COVID-19 pandemic, Gartner Consulting recommends HR leaders do the following:
Provide direction, confidence and resilience |Employees are relying on leaders at all levels of the business to take action and set the tone. Communications from senior business leaders to managers should prioritise associate health and business sustainability. Communicate regularly with employees, maintaining an open dialog. Gartner’s survey found that 56% of organisations have communicated a plan of action to employees in the event the COVID-19 outbreak.
Contextualise coronavirus for the organisation |Leaders should be a trusted source for accurate and up-to-date information on coronavirus and how it is impacting the organisation. Avoid sharing information from social media; leverage trusted resources such as the World Health Organisation and the Centers for Disease Control and Prevention. Contextualise information and data as much as possible so that it specifically relates to the organisation.
Encourage intentional peer-to-peer interactions |With reduced or no face time in the office, employees should maintain regular professional and personal interactions with their peers. Gartner’s survey found that 40% of organisations have set up additional virtual check-ins for employees with managers and 32% of organisations have introduced new tools for virtual meetings. HR leaders should encourage employees to leverage communication platforms they already use, either at work or in their personal lives, to create new ways to work together.
Establish team guidelines |Remote work looks different for each employee depending on their needs and those of their families. With unprecedented school closures, many employees must take on a double role as they support their children and families throughout the workday. Organisations can meet employees’ needs by empowering teams to adapt to their conflicting time demands. For instance, teams can set “core team times” when all team members are available to collaborate.
Provide flexibility for employees’ remote work needs |When preparing for employees’ eventual return to the office, empower employees to make choices best suited for their needs and comfort levels. Where possible, allow employees to decide when to return to the office. Enable essential employees whose work requires them to return to the office to choose the hours that work best for them to return to avoid peak commute times.