In Australia’s larger cities, many employers will start to bring more employees back into the workplace over the coming weeks. Victoria is allowing up to 50 percent of the private sector workforce back, and Sydney and Brisbane have the recent COVID outbreaks under control as we write this. With vaccinations on the horizon, this means that the number of people working from home nationally will decline, as compared with restricted conditions over the last 10 months.



But just because more employees are able to return to the workplace, this doesn’t necessarily mean that all of them will want to. In fact, according to a Fair Work Commission’s survey, only about 5 percent of employees want to return to the office full-time, whereas one-third wants to return on a part-time basis only.

While many employers have found that working from home has had no effect on productivity, others believe it has had a negative impact on their business efficiency and bottom line, and would prefer working life to return to the way it was pre COVID-19.

This now sets the scene for a tug of war between employees and employers.

But what does the law say about employees’ rights to refuse to return to the workplace?

Can an employee refuse to return to the workplace?

In a nutshell, the law is clear that if your workplace has a COVID-safe plan, your job requires you to be in the office and if your employer says it’s time to return, then not doing so can result in disciplinary action or even termination.

However, large groups of employees also have the right under the National Employment Standards to make a request for flexible working arrangements, including working from home arrangements as well as flexible hours, and employers have an obligation to consider these. Reasons an employee would have reasonable grounds to request to continue working from home would include: if the workplace isn’t following a COVID-safe plan, if you are ‘at-risk’ – that is, have a medical condition which impacts your immunity or makes you more susceptible to a respiratory infection, or you have been in close contact with – or need to care for – someone who is COVID-19 positive.

Recognising employee fears

Many employers are making arrangements for individuals based on their personal circumstances, and that is a reasonable and responsible approach. But it also needs to be acknowledged the extended lockdown in Melbourne and the emergence of COVID clusters and hotspots over the December holidays have left a lot of people feeling vulnerable and uncertain about the start of 2021 and returning to the workplace. Front of mind is the fact that the virus is still active and highly contagious.

It’s only natural that some people will feel apprehension about being able to social distance adequately in a workplace, having to use shared spaces and general hygiene standards in the office environment, as well as using public transport.

Mental health considerations

For anyone with mental health issues such as depression or anxiety, these fears surrounding the virus can be exacerbated, and their condition may have worsened over the past several months. While, under the law, this is not necessarily a reasonable excuse not to return to work, it highlights the need for employers to recognise that everyone will respond differently to returning to the workplace. For some it will be difficult and stressful. For others it will be a welcome return to some kind of routine and normalcy.

At this time, employees are being encouraged to negotiate with employers and vice versa. These are unusual times, and while state and federal Governments are championing safe return to work because it is a signal of productivity and good for the overall economy, in some cases, people will need more time and compassion from their employers and co-workers as they adjust to the idea.

In some cases, bringing an employee back into the office may be a process that shouldn’t be rushed.

If you need support or guidance in returning employees to work, contact our Workplace Relations team.