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- an employee infected with COVID-19
- an employee caring for someone infected with COVID-19
- an employee required to care for another who is not infected (for example, children)
- an employee required to self-isolate because they have travelled to a country with cases or has been in contact with someone who has or may have been infected with COVID-19
We have prepared a fact sheet that considers an employee's leave entitlements in these scenarios.
This fact sheet is based on an article prepared by Maddocks and published on their website.
Changes to modern awards
As a result of COVID-19, the modern awards have been subject to significant changes throughout 2020.
Among the most significant of these changes was the variation of 99 modern awards to provide for two weeks of unpaid pandemic leave and the ability to take twice as much annual leave at half their normal pay if their employer agreed.
Many of these awards have also been varied to account for significant changes to the workplace as a result of COVID-19.
Unfortunately from a compliance perspective, the variations to the modern awards expire at many different dates.
The Fair Work Ombudsman updates their guidance on temporary changes to workplace laws during the COVID-19 outbreak so organisations should review this website regularly.
If an employee is unwell, their employer should tell them not to attend work, and if necessary, see a doctor. The employee will be entitled to paid personal leave. If the employee doesn’t accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave to use, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.
In most circumstances, an employer can’t direct an employee to use personal leave if they aren’t sick. Personal leave is available to the employee when they are not fit for work due to a personal illness or injury (and carer’s leave is for when they need to care for or support someone who is ill or injured or who requires care or support due to an unexpected emergency).
If the employer has told the employee not to come to work as a precautionary measure, where the employee has not been diagnosed with any illness and is not showing symptoms, they can’t be forced to use their personal leave.
Medical clearances and leave entitlements
But, if an employer reasonably suspects an employee is unwell, they can direct the employee to have a medical examination and provide medical clearance before they return to work. This is part of an employer’s work health and safety responsibilities. But risks can arise if the employer’s direction is not reasonable (for example, if there is no sound basis for the suspicion).
As a result of COVID-19, 99 Modern Awards have been varied by the Fair Work Commission. These changes mean that employees who are covered by these awards are entitled two weeks of unpaid pandemic leave. This may also be a suitable leave option.
If an employee is a carer for someone who is unwell, they should take carer’s leave. Carer's leave comes out of the employee's personal leave balance. If the employee doesn't accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.
All employees, including casual employees, are entitled to 2 days of unpaid carer’s leave on each occasion they need to care for an unwell member of their family or household. Employees may also be entitled to take unpaid pandemic leave pursuant to recent changes to most of Australia’s modern awards (above).
Generally, no. You can advise employees that they may access their long service leave entitlements if they wish to, however, the conditions on which employees can take this leave is subject to the relevant state or territory long service leave legislation. For example, the employee may be required to take a minimum period of long service leave or give a minimum period of notice to the employer.