COVID-19 – Leave entitlements for impacted employees
We have set out below a quick reference guide to the general position with respect to the various types of leave that a full-time, part-time or fixed term employee, who is impacted by the novel coronavirus outbreak, may be entitled to take or to request.
As always, the situation may vary depending on:
- whether the relevant employee is covered by a Modern Award or enterprise agreement (or in some cases, a pre-reform industrial instrument)
- what their contract of employment says, and
- company policies (which may or may not give rise to contractual entitlements).
The quick reference guide below refers to leave types under the Fair Work Act 2009 (Cth) and state/territory long service leave legislation, but there could be other types of leave available depending on the workplace. For example:
- some employers have recently introduced special leave in the face of the COVID-19 outbreak (e.g. Isolation Leave or Epidemic/Pandemic Leave – typically some elements such as the quantum and whether it is paid or unpaid are subject to employer discretion)
- some employers are inviting employees to take extended unpaid leave given the deterioration in business conditions
We are currently working with clients to assist them to update their leave policies, as well as with other measures to cope with the outbreak – our earlier blog includes a section on stand downs, for example.
QUICK REFERENCE GUIDE: Leave for full-time, part-time or fixed term employees
Situation: Potential leave type(s):
Employee is absent from work due to illness Sick (personal) leave (and if their sick leave entitlement is exhausted, unpaid leave).
An employer can require medical clearance prior to the employee returning to work.
Employee cannot attend work due to carer responsibilities – e.g. sick child or sudden emergency school closure Carer’s leave – if the circumstances permit, see s.97 Fair Work Act 2009 (Cth)
(Otherwise unpaid leave – i.e. if ineligible, or unpaid carer's leave where the employee has exhausted their paid entitlement)
Employee preference not to attend the workplace due to their personal concerns about the outbreak In normal circumstances – unpaid leave if agreed, or another type of leave if agreed (e.g. annual or long service leave).
NB In some situations, workplace health and safety obligations may dictate a different approach, such as working remotely or implementing protective measures.
Employee is put into quarantine or required to self-isolate as per government requirements
e.g. employee returns from overseas on or after 16 March 2020 whilst current self-isolation requirements are in place
e.g. employee has had close contact with someone who has been diagnosed with COVID-19
If employee is not sick:
• The reason that the employee is unable to attend work is due to government rules – not due to illness.
• If feasible, employer may permit working from home (for some or all of the period).
• Employer can permit the employee to take accrued leave (annual leave, long service leave); employer may also agree to grant unpaid leave.
If employee is sick:
• Employee could access their accrued sick leave.
• An employer can require medical clearance prior to the employee returning to work.
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