Life after lockdown: what are your rights with returning to work?

COVID-19 has changed many things in our lives. It has made us adapt to new social norms of staying 1.5 meters apart, it has introduced face masks to our daily lives, and it has caused a mass disruption to the way we work. But now that many lockdown restrictions are easing and we start to return to more “normal” ways of working, what are your rights to continue to work flexibly?

Can you continue to work from home if your employer wants you to return to the office?

If your employer wants you to return to the office, then in most cases you’ll have to go back unless their request is unreasonable or it’s unsafe. Whether it’s safe for you to return will depend on factors such as the nature of your employer’s business and how it’s carried out, whether your employer is complying with government regulations around COVID-19, your role and how it’s performed, how many community transmission cases there are currently, and whether you have a pre-existing condition that makes you more vulnerable to COVID-19.

Under the Fair Work Act, if you’ve been working in your job for over 12 months, you have a right to request to work from home if:

• you care for a child of school age or younger;
• you are a carer;
• you have a disability;
• you are 55 years or older; or
• you are experiencing family violence or you are providing care or support for a member of your household who requires your care because they are experiencing family violence.

If the above conditions apply to you, then your employer must seriously consider a request for flexible working arrangements and may only refuse on reasonable business grounds.

Of course, as is the trend in many industries, there is nothing to stop you and your employer from agreeing on flexible work arrangements that allow you to continue working from home some or all of the time.

What if you’re more vulnerable to the effects of COVID-19 due to other medical conditions. Does this affect your rights to continue to work from home?

Under anti-discrimination laws, your employer may be required to make reasonable adjustments to the way your role is performed to accommodate for your medical condition. This may include allowing you to work from home.

Federal, State and Territory work health and safety laws all allow for employees to refuse to work, or to stop work, if they have a reasonable concern that they will be exposed to a serious risk to their health and safety.

Can you be required to continue to work from home, even if you want to return to working in the office?

If your employer is receiving Job Keeper payments for you, then you can be directed to continue to work from home.

If not, it depends on the circumstances. If the office where you used to work is open and safe, and your role can be performed from the office then a direction requiring you to continue to work from home could be challenged, depending upon your employer’s reasons.