Questions & Answers

Employee Leave Entitlements – Coronavirus

During this period of uncertainly, please ensure that you do not throw caution to the wind. 

Although, we are facing an extra-ordinary situation, we are still guided by Fair Work Act, relevant modern awards, Work Health & Safety Act, employment agreements and company policies and procedures.

Remember, with any major workplace change, consultation and communication is always required.  It will provide for a fair, just and reasonable approach to the whole business.

Below are a number of questions we have come across within the last week, which we know you will be wondering too.

If an employee has symptoms of the coronavirus can we direct them to stay home?

If an employee is showing any symptoms of the coronavirus (e.g. fever, coughing, sore throat, fatigue, shortness of breath) they should be directed to stay home and contact their doctor.

The employee should not be allowed to return to work until their doctor has certified that it is safe for them to return to work and you have received something in writing from the doctor to that affect.

This could include a period of isolation.

We recommend that a verbal communication is made (followed by a written communication) directing  employees not to attend work if they are experiencing any symptoms associated with the coronavirus or have come into close contact with people who have been exhibiting such symptoms.

You will find attached a template internal communication memo to be used for this purpose.

Can we direct an employee who has been overseas or gone on a cruise to self-isolate for 14 days?

Yes.

It is now a Government enforced requirement for all people entering Australia to self-isolate for 14 days (even Brooke from our office is currently working from home in self-isolation after returning from New Zealand).

It is reasonable for the employer to direct their employees to follow this requirement.

Please ensure that you monitor the advice issued by the Department of Health and base any directions to self-isolate on this advice. We will also keep you informed as we can.  Click here for more information

Employers should consider whether it is possible for employees to work remotely from home during any period of self-isolation. If it is possible, they should be encouraged to do so (ensure you have relevant working from home policies and procedures in place).

Can we direct an employee who has been in contact with someone who has the coronavirus to self-isolate for 14 days?

If it is known or reasonably suspected that an employee has been in close contact with someone with the virus, the employer should direct them to see their doctor for testing and advice.

The employer can direct the employee to not attend the workplace until their doctor has advised that it is safe to do so, which may include a period of self-isolation.  Ensure that you obtain this advise in writing from the medical practitioner and you do not just accept the word of the employee.

Can an employee take paid personal leave if they contract the coronavirus?

If a permanent full-time or part-time employee is unfit for work because of a personal illness or injury affecting them (including coronavirus), they are permitted to make use of any personal leave accrual they may have.

Casual employees are not entitled to paid personal leave.

 What if the employee doesn’t have any paid personal/carer’s leave left?

If an employee has a zero balance of personal leave we do not recommend leave goes into a negative balance.   

If there is a zero accrual of paid personal/carer’s leave they can take leave without pay or choose to use any other accrued leave type i.e. annual leave, long service leave.

An employer cannot unreasonably refuse a request to take paid annual leave.

Is an employee entitled to paid personal leave if they are not sick but unable to come to work because they are in self-isolation?

If an employee is in self-isolation but has not actually contracted the coronavirus and are in all other respects fit to work, they will therefore not be unfit for work because of a personal illness or injury affecting them.

Unfortunately, they will not be entitled to paid personal/carer’s leave.

Options available include the employee working from home and paid normal hours or possibly use any accrued annual or long service leave.

Stand-down

It is possible to stand employees down without pay in certain situations. Under the Fair Work Act, an employer can stand an employee down without pay during a period in which they cannot usefully be employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

It may be possible to rely on these provisions if an employee cannot usefully be employed because of a period of quarantine that is justified based on government guidelines, because it would not be something the employer can be held responsible for.

However, it must not be possible for the employee to be usefully employed, so working at home options would need to be considered.

Each situation will need to be considered on a case-by-case basis and we recommend you seek further advice.

 What if the employee contracts the coronavirus while they are taking annual leave?

If an employee becomes unfit for work because of a personal illness or injury affecting them during annual leave, they are entitled to treat that time as paid personal/carer’s leave.

This would be the case if an employee contracted the coronavirus while they are on annual leave.

The time that they are unwell would come off their accrued personal/carer’s leave balance, rather than their annual leave balance (even if it was originally approved as annual leave).

What if an employee just stays home because they are afraid of contacting the coronavirus?

The employee will need to first obtain approval for any type of leave from the employer.

It could be taken as unpaid leave, annual leave, leave without pay or the employee could work from home and is paid their normal rate.

Can an employee use carer’s leave to care for a family member who has contracted the coronavirus?

Permanent full-time employees accrue 10 days of paid personal/carer’s leave per year (pro-rata for part-time employees), which can be used for any combination of personal leave or carer’s leave.

Carer’s leave can be taken to provide care or support to a member of the employee’s immediate family or household who requires care or support because of a personal illness or injury, or unexpected emergency, affecting them.

A member of an employee’s immediate family means ‘a spouse, de facto partner, child, parent, grandparent, grandchild or sibling. It also includes a child, parent, grandparent or sibling of a spouse or de factor partner of the employee’.

If a member of the employee’s immediate family or household has contracted the coronavirus, the employee will be entitled to take paid carer’s leave to care for them.

Employees can also take up to 2 days of unpaid carer’s leave per occasion if they have no accrued paid personal/carer’s leave available.

Can an employee use carer’s leave to take care of children affected by school closures?

Yes.

Carer’s leave can be used to care or support a member of the employee’s immediate family or household who requires care or support because of an unexpected emergency.

The case law indicates that an unexpected emergency would include where children are unexpectedly home from school because of a school closure.

Employers should anticipate that employees can use carer’s leave to stay home to take care of their children if this occurs. 

At Integrated HR, we are also parents and understand it can be a challenge working from home when kids are around – however, we would encourage employees to work from home and balance the two needs.  We are mindful that a lot of businesses will still need to remain functional throughout this time and can’t just stop meeting the needs of clients and customers.

Can we require the employee to provide evidence for taking personal/carer’s leave?

Yes.

An employer only has to pay an employee for personal/carer’s leave if the employee has provided evidence that satisfies a reasonable person that the leave has been taken for a permitted purpose i.e. a doctor’s certificate or statutory declaration.

Can an employee claim workers compensation in relation to the coronavirus?

Workers compensation is only available for illnesses or injuries sustained in the course of an employee’s employment.

We are here to help

Each workplace has its own unique challenges.  Should you have any questions, please do not hesitate to contact your outsourced human resources team.

(07) 5613 1846              info@humanresourcing.com.au

This information has sourced from Sourcelegal.com.au and fairwork.gov.au