COVID-19 – Implications for Employers series – Part Two – Leave Entitlements

by Freya Lucas

March 31, 2020

Over the coming days The Sector will be bringing you an informative series, designed to explore the implications of the COVID-19 pandemic for employers. Covering issues such as employee safety, workplace obligations, leave entitlements and managing business continuity, the series is a must-read, tailored to the early childhood education and care (ECEC) sector, based on generalised advice from law firm Corrs Chambers Westgarth

 

In part two of the series, we explore leave entitlements, including how usual leave entitlements apply in the context of the COVID-19 pandemic, what information employers are entitled to from their employees, what happens if employees are told to quarantine, whether employees are required to disclose a direction to quarantine, refusals to attend work, and whether or not employers can force employees to take leave. 

 

Leave entitlements 

Under normal circumstances, many businesses, including those working in the ECEC sector, will ask employees to use all available leave entitlements, including sick leave, carers leave, annual leave and long service leave in the event that they need to care for a family member who is ill. 

 

With widespread isolation measures being implemented it will become common to respond to the situation where an employee or their family member is ill with the COVID-19 virus. Basic sick leave entitlements are set out in the Fair Work Act 2009 (Cth) (FW Act)

 

In Australia, national system employees, other than those engaged on a casual basis, are entitled to 10 days’ paid personal/carer’s leave for each year of service. The entitlement accrues on a progressive basis and many employees will have an accrual in excess of ten days. In the context of COVID-19 personal/carer’s leave will apply: 

 

  • When a full or part-time employee is not fit for work because they have contracted the virus; 

 

  • If an employee needs to look after a family member or member of the employee’s household who is sick with the virus; or,

 

  • If an employee needs to look after a family member or member of the employee’s household because of an unexpected emergency, such as a shutdown of carer or school facilities which requires the employee to mind a healthy child or elderly member (noting that the need must be ‘unexpected’, as in with little or no warning, to trigger the leave entitlement, so forewarned or ongoing closures may not be covered). 

 

There is no limit on the number of days of accrued leave that can be taken for either of these purposes. Casual employees have access to unpaid carers and compassionate leave. 

 

Permanent employees can also use unpaid carers leave once they have exhausted their paid entitlements to personal leave. 

 

Employees must give notice to be paid for carers leave and personal leave. In essence, this means that an employee must inform their employer, as soon as is practicable, of the need for leave, and advise them of the expected period of leave. 

 

An employee must also give their employer evidence of the illness or unexpected emergency if their employer asks for it. Medical certificates or statutory declarations are typical examples of acceptable forms of evidence. While there are no strict rules on what type of evidence needs to be given, the evidence needs to satisfy a reasonable person that the employee was genuinely entitled to the personal/carer’s leave. 

 

During the COVID-19 pandemic, it may not be possible for employees to attend a medical clinic or pharmacy, as people may be directed to stay home wherever possible, and as such, employers may need to show some flexibility here. 

 

The question of paid sick leave in the event that an employee is required to isolate themselves is one which is not explicitly covered in the FW Act. Some employers may wish to develop policies to address this situation, considering a response in the event that this situation arises. 

 

The response may include the following options: 

 

  • Making arrangements for remote working; 

 

  • If remote working is not practical, using annual leave or other types of available leave; or,

 

  • Any other paid or unpaid leave by agreement between the employee and the employer, including personal leave.

 

It is important to note that option c may attract the risk of breaching the National Employment Standards (NES) to the extent the employee is using up their personal leave entitlement where they are not in fact ill, even where the employee agrees to this approach.

 

Some Unions are advocating for employees to be offered special paid leave in the event that they are required to quarantine, so that they are not disadvantaged, and to protect their personal leave accruals. 

 

Isolation and quarantine

While it is reasonable to expect employees to contact their employer as soon as practical if they are unable to attend work because they have been required to be isolated at home or to enter quarantine because of exposure to COVID-19, there is currently no obligation for the employee to specifically inform their employer of the circumstances relating to their period of quarantine or isolation. 

 

Despite this, it is likely that issuing a directive to an employee to share these details would be a reasonable management action, given the impact to the health and safety of co-workers and others within the environment. 

 

It is also not unreasonable, and would be an appropriate safety control, to require such an employee to stay at home and not permit them to attend at the workplace until full information is shared.

 

For employees who have not been expressly directed to isolate or quarantine, but who choose to do so voluntarily, the usual situation is that an employee would need to make a request to work from home (if possible) or to take some form of paid or unpaid leave, such as annual leave or long service leave. An employee is not otherwise entitled to be paid if they refuse a reasonable direction to attend work as directed. 

 

A note of caution 

Corrs Chambers Westgarth has advised that “it is prudent for employers to exercise some caution with these arrangements. In this dynamic environment you may accommodate some flexibility in managing your staffing needs, particularly if other employees become ill or have caring responsibilities.”

 

Further, the firm said, arrangements may need to be made subject to the resourcing needs at the workplace so they can be altered at short notice. This means being upfront about how an employee’s responsibilities, for example child care (including in the event of school closures), are to be managed.

 

“If the individual refusing to come into work is pregnant or otherwise at high risk, you should tread carefully and may have to be more flexible. If someone has genuine fears about attending work, the stress of being required to do so or alternatively face disciplinary action may itself adversely affect their health.” 

 

“Effectively managing these arrangements requires employers to be on top of the latest health information being provided by the relevant health departments. Each of Australia’s Commonwealth, State and Territory departments are publishing information and guidance about the outbreak of COVID-19. Events are unfolding quickly and your intelligence needs to be updated to reflect the available public health advice” a Corrs,Chambers Westgarth spokesperson said. 

 

Mandated leave 

The FW Act expressly provides that an award may include terms requiring an employee to take paid annual leave in particular circumstances, but only if the requirement is reasonable. Similar provision is made for award-free employees.

 

While there is no guidance about what constitutes “reasonable” there are certain factors which must be considered including the needs of both the employee and employer’s business; the timing and direction to take leave; and the reasonableness of the period of notice given to the employee to take leave.

 

The Fair Work Commission has introduced a model award clause which outlines that employers can direct employees to take annual leave in the event that an excessive amount has been accrued (eight weeks of leave for permanent employees, and ten weeks for shift workers.) 

 

Please note, the advice given above is general in nature, and is not intended to replace the advice or resources put forward by relevant state and territory health authorities. Although every effort has been made to ensure the information presented above is both timely and accurate, leaders are encouraged to consider their own unique circumstances before implementing the advice put forward. 

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