COVID-19 Policies for Small Businesses
The existence of a pandemic has many implications for small businesses, both immediately and in the future. In the short term, it is imperative that businesses implement workplace policies that are consistent with the latest advice from the Australian Government and related health authorities, in order to limit the spread of the virus and ensure that their businesses can operate with minimal disruptions while the virus is prevalent.
Down the track, it is likely that we will see a spate of legal action connected to the outbreak of COVID-19, as certain contracting parties find themselves unable to meet their contractual obligations due to the effects of the virus. In such cases, parties may need to rely on force majeure clauses to relieve them of their obligations under a contract.
Below are some suggested policies that small businesses (in an office environment) should consider implementing, as well as some potential legal implications associated with the outbreak of COVID-19.
Follow the latest Government advice
All staff should be aware of the latest advice from the Department of Health regarding COVID-19. Businesses should ensure that up-to-date information regarding the virus is circulated to employees, perhaps via email or through notices in the workplace. As of 18 March 2020, the most notable Government advice is:
- all individuals should practice good hygiene, including washing their hands frequently with soap and water, covering coughs and sneezes, and keeping a distance of 1.5 metres between them and other people where possible;
- anyone who has returned from overseas since midnight on 15 March 2020 is required to self-isolate for 14 days and should monitor their health during this time;
- anyone who has been in close contact with a confirmed case of COVID-19 should monitor their health closely and seek medical advice if they develop any symptoms (including a cough, fever, shortness of breath or sore throat); and
- Australians are advised not to travel overseas.
While the Department of Health advice is a good starting point, businesses should consider taking a more cautious approach to avoid being felled by the virus.
Any staff members experiencing symptoms should be told to stay at home and seek medical attention. Businesses may consider only permitting these employees to return to work once they have been tested for the virus and have a certificate from a medical practitioner confirming they are healthy.
Moreover, any employees who have come into contact with a suspected or confirmed case of COVID-19 should immediately isolate themselves for 14 days and monitor their health, and should only be permitted to return to work if they are asymptomatic after this 14-day period.
Minimise the amount of people in an office
As a pre-emptive measure, businesses should strongly consider minimising the amount of people working in their offices at any given time. This may be achieved via:
- implementing a roster wherein groups of employees are allocated days where they will be working in the office and days where they will be working remotely; or
- advising certain employees to work remotely/from home indefinitely.
The most appropriate of the above options will differ based on the nature and size of one’s business. Although some businesses will require certain employees to remain in the office in order to maintain normal operations, it is likely that most firms will have some employees that can maintain their usual output and manage their required workload from a remote location, such as at home. To ensure that they are able to effect these pre-emptive measures, businesses should:
- update their working-from-home policies and procedures and confirm that employees are aware of their duties and expectations while out-of-office (including with respect to communication with team members, availability, deadlines etc.);
- make sure that employees working from home have the resources to be able to maintain their normal output (e.g. a working computer, adequate internet speed, appropriate software, stationery etc.); and
- seek regular feedback from employees regarding remote work policies and practices and any improvements that can be made in this respect.
Minimise face-to-face interactions with clients
At a minimum, all clients should be asked whether they have travelled overseas recently or have been in contact with someone who is suspected, or confirmed, to have been diagnosed with COVID-19. If the answer to either of these questions is yes, clients should not be permitted to attend a firm’s office, nor should employees meet these clients outside of the office. Businesses should ensure that their offices have signs in prominent locations warning clients of the above risks and advising them to be vigilant.
As a further precaution, where possible, face-to-face meetings with clients should be substituted for alternative means of communication that do not involve physical interaction. This includes:
- telephone conferences;
- video conferences (e.g. through Skype or Zoom); and
- email communication.
Where it is essential that clients meet face-to-face with employees, both parties should ensure that they practice the appropriate hygiene measures recommended by the Department of Health. This should also apply where businesses are dealing with suppliers.
If a business has clients that they regularly do business with, it is a good idea to send out a notice to these clients informing them of any new policies that the business is implementing in response to COVID-19, where these policies are likely to affect those clients.
Force majeure clauses
Force majeure clauses govern the effect on contracts of events that are outside the control of the contracting parties. Common events that may trigger a force majeure contract include, but are not limited to, natural disaster (e.g. earthquake, flood, hurricane), war, strike, terrorism, or act of God. A pandemic may also come under the ambit of a force majeure clause.
Force majeure clauses will outline what will happen in the event of a ‘force majeure event’ such as those described above, and generally include a limitation of liability should a party be unable to meet a deadline or complete an obligation under the contract due to such event.
To trigger a force majeure clause, performance of the relevant obligation under the contract must have been rendered impossible by the force majeure event. Mere inconvenience or an increase in costs will be unlikely to invoke a force majeure clause. Force majeure clauses, if they exist, need to be carefully examined to determine if they can be relied upon due to the effects of COVID-19.