One of our employees has been on annual leave for three weeks, and are now ill with COVID-19. They still have 2 weeks of annual leave to complete. Can they use personal leave instead of annual leave whilst they are sick?
Where an employee is on a period of annual leave and lets the employer know that they were sick for a portion of their annual leave, they can use their personal leave and have their annual leave re-credited.
Under the Fair Work Act 2009, section 89(2) sets out that if an employee is on annual leave, and becomes entitled to another form of leave, other than unpaid parental leave, then the employee is taken not to be on annual leave for that time.This means that an employee is entitled to swap their annual leave for personal leave.
This however is subject to the employee providing notice and evidence of the illness in line with the employer’s policies and procedures. Notice must be given to the employer as soon as practicable (which may be a time after the leave has started) and must advise the expected period of the leave. Evidence could include a medical certificate, a statutory declaration, or any other evidence that a reasonable person would be satisfied with.
If the employee provides the appropriate notice and evidence covering the days they claimed they were sick, the employer should do a payroll adjustment to pay personal leave for that period and re-credit their annual leave back to them.
For assistance with workplace matters, Members of Ai Group can contact us or call our Workplace Advice Line on 1300 55 66 77 for further information.
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Clinton is the Publications Manger at Ai Group. He is responsible for a number of key services including Annotated Modern Awards, Workplace Relations Handbooks and the management of Ai Group’s HR and Health & Safety Resource Centres. Clinton has a Masters in Employment Relations and previously held advisory roles with the Workplace Authority and Fair Work Ombudsman.