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COVID-19 and Employee Leave

March 18, 2020

Depending how the COVID-19 virus has impacted your workplace, there are various leave options that should be explored, and in some cases are required to be provided to employees.

Under the Fair Work Act 2009 (FW Act), paid personal leave is available to all employees (other than casuals):

  • if they are not fit for work because of personal illness or injury;  or
  • to care for or support a member of their immediate family or household who requires that care or support due to personal illness or injury or an unexpected emergency.

Employees are entitled to 10 days paid personal leave for each year of service.

The following scenarios provides some general guidance in relation to an employee’s leave options and whether the leave should be of paid or unpaid, in accordance with the FW Act.

Employee is sick

Personal leave (where available), or unpaid leave. An employer can request evidence of the need to take leave. 

Employee is not sick but must care for an immediate family member, or a member of their household (this includes care responsibilities where schools may close)

Personal leave (where available), or unpaid leave. Employer can request evidence of the need to take leave.

Employee does not want to come to work due to risk of infection

  • This should be dealt with on a case by case basis as there may be genuine circumstances which warrant an employees concerns (e.g. - living with an elderly person, or are managing a chronic illness);
  • Where an employee provides evidence of the need to take leave, Personal leave may be taken;
  • Alternatively an employer, at their discretion can allow the employee to take a form of paid leave (annual leave, or long service leave);
  • The employer may also explore options from working from home; or
  • Where there is no risk of infection an employee can take unpaid leave.

Employee is not sick however is under mandatory quarantine or stuck overseas (e.g.- close contact with suspected case and is undergoing testing, or has recently taken an overseas trip)

  • Explore options to work remotely or from home;
  • Allow use of accrued leave (e.g.- annual leave, or long service leave); or
  • Employee to take unpaid leave.

Employee is not sick but is required by the employer to stay away from the workplace (e.g.- precautionary measures decided by employer)

  • Explore options to work remotely or from home; or
  • Pay employee for normal hours of work (due to employer directed requirements).

Employer is required to temporarily close a workplace or a construction site due to exposure to the COVID-19, or an outbreak in the workplace; or the impacts of COVID-19  for example unavailability of materials.

  • Explore options to work remotely or from home;
  • Pay employee for normal hours of work (due to employer directed requirements);
  • Request employees utilise accrued leave (e.g.- annual leave, or long service leave) or contemplate unpaid leave
  • Stand down your employees.
    An employee can only be stood down without pay if they cannot do useful work in limited circumstances such as a stoppage of work for which you can’t be held responsible (e.g.- severe and inclement weather or natural disasters).
    Unfortunately, it is unclear whether exposure to, or outbreak of COVID-19, or unavailability of materials due to COVID-19 would be classed as a ‘stoppage of work’.
    Enterprise agreements and employment contracts may have different rules about when you can stand down an employee without pay. Therefore employers need to check these agreements and contracts to determine if any alternative scenarios may apply.

Employer is contemplating redundancy due to impacts of COVID-19

  • Seek advice regarding redundancy obligations under the employees Award or Enterprise Agreement.
  • Strict obligations apply in relation to consultation, notice, and severance payment. Employers must comply with these obligations to ensure an employee’s dismissal is not unfair.

If you have any further questions or concerns contact a HIA Workplace Adviser on 1300 650 620 or email enquiry@hia.com.au

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