Coronavirus (COVID-19) Resource: Annual and personal/carer's leave

In this blog post we look at the entitlements of employees when absent from work as a result of Coronavirus (COVID-19)

The following content is based on information availableat the time of publishing.

The Coronavirus (COVID-19) pandemic raises a number of important workplace relations issues including employee leave entitlements under the Fair Work Act 2009 (FW Act) which are discussed below.

Employees and their family members who are sick

Under the FW Act full-time and part-time employees are entitled to access their accrued paid personal/carer’s leave if:

• the employee is not fit for work because of a personal illness or personal injury; or
• to provide care or support to a member of the employee’s immediate family or a member of the employee’s household because of a personal injury, personal illness or unexpected emergency affecting the member.

Thereis no limit to on the number of days of accrued leave that can be taken as personal/carer's leave.

Casual employees are not usually entitled to paid personal/carer’s leave because the standard 25% casual loading includes compensation for this entitlement.

Under the FW Act, casual employees are entitled to two days of unpaid carer’s leave per occasion.

Also, full-time and part-time employees can take unpaid carer’s leave if they do not have any accrued paid personal/carer’s leave left. Under the general protections in the FW Act, employees are protected from being dismissed as a result of a temporary absence due to an illness or injury.

Employees who can’t attend work because COVID-19 has shut down their child’s childcare centre or school has been shut down due to COVID-19?

Under the FW Act an eligible employee can take any of their accrued paid personal/carer's leave to provide care or support to a member of the employee’s immediate family or household who required care or support because of ‘an unexpected emergency’.

The meaning of an ‘unexpected emergency’

In a Federal Circuit Courtcasedecisionon this matter it was held that an ‘unexpected emergency’ included circumstances where a mother of a primary school aged child was unable to make alternative arrangements and left work early to collect her son from school, giving her employer one day’s notice.

There would be little doubt that if a school closed in the middle of a particular day due to COVID-19 and a parent had to leave work to pick up a child to care for them, this would be an ‘unexpected emergency’.

It might also be the case that if a school closed suddenly and the school closure lasted for two days while the school was thoroughly cleaned that this would be an ‘unexpected emergency’.

However, the idea that an ongoing school closure is an ‘unexpected emergency’, in Ai Group’s view, is not correct.

If there was only, say, one day’s notice of an ongoing school closure then the first day and perhaps even the second day may be regarded as an ‘unexpected emergency’ but then the event ceases to be ‘unexpected’.

After this time, an employee would most likely need to use other leave (such as annual leave) to continue to be paid for their absence or flexible working arrangements could be undertaken where, for example, the employee works after hours.

Employees who are stuck overseas on a personal holiday

Employees who are stuck overseas on a personal holiday due to travel restrictions are not entitled to be paid for periods not worked, unless they use any paid leave entitlements that they have (e.g. paid annual leave).

Employees who are required by the Government to self-isolate when they return to Australia

The entitlements of full-time and part-time employees who are required by the Government to self-isolate for 14 days on their return from overseas have been the subject of a great deal of debate.

The Australian Government’s announcements have referred to the “requirement” for certain persons entering the country to self-isolate for 14 days.

However, it appears that, so far, the Government has not used the formal legal instruments that it has available to it to force people to comply (i.e. instruments under the Biosecurity Act 2015).

On 15 March, the Prime Minister announced a new requirement that persons returning from overseas will be required to sign a Statutory Declaration when they enter Australia declaring that they will self-isolate for 14 days.

The Prime Minister stressed that the 14-day self-isolation period is mandatory and that State and Territory Governments will determine what penalties will apply to those who do not comply, through relevant State and Territory legislation.

The effect of this appears to be as follows:

• If, by agreement between the employer and the employee, an employee works from home during the 14-day period, the employee is entitled to be paid.
• If a full-time or part-time employee is absent from work due to the employee’s voluntary compliance with the Government’s self-isolation requirement, the employee is not entitled to payment unless they use paid leave entitlements (e.g. paid annual leave).
• If a full-time or part-time employee is not willing to comply with the Government’s self-isolation requirement (despite the fact that they may be exposed to penalties) the employer would be wise to direct the employee not to attend work to protect the health and safety of others in the workplace. In these circumstances, the employee would ordinarily be entitled to be paid.

A casual employee is not entitled to be paid for periods not worked.

Of course, employers are able to make payments to employees that exceed the legal minimum should they wish to do so.

For assistance in managing remote workers please see our 'Sample Working From Home Policy'.

Employees who are required by their employer to stay at home as a precaution

If an employer requires an employee to stay at home as a precaution, the following entitlements would apply:

• If, by agreement between the employer and the employee, an employee works from home during the period, the employee is entitled to be paid.
• If a full-time or part-time employee takes paid leave by agreement with the employer, the employee is entitled to be paid for the period of the leave.
• If a full-time or part-time employee takes unpaid leave by agreement with the employer, the employee is not entitled to be paid for the period of the leave.
• If a full-time or part-time employee is not willing or able to work from home, and not willing to take leave, the employee would ordinarily be entitled to be paid.
• A casual employee is not entitled to be paid for periods not worked.

Annual leave

The FW Act does not give employers the right in most circumstances to direct employees to take annual leave, so employers who wish their employees to take annual leave should endeavour to reach agreement with each employee.
If an employee requests annual leave the employer must not unreasonably refuse such a request.

Employers are able to grant a period of annual leave in advance to an employee, should the employer wish to do so, Our 'Agreement to Take Annual Leave in Advance Form' may be of assistance..

Further assistance

Members cancontact usorcall the Workplace Advice Line on 1300 55 66 77 for assistance with their workplace matters.

More Coronavirus (COVID-19) advice and resources can also be found at Ai Group'sdedicated webpage. Specific COVID-19 HR Resource Centre and Health & Safety Resource Centre content to assist memberscan be foundhere.