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COVID-19 and Employee Leave options

Do you need to know the types of leave available to your workplace and employees if affected by COVID-19?
Wednesday, 12th January 2022

Depending how the COVID-19 virus has impacted your workplace, there are various leave options and government financial support 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.

Under the Modern Awards, until 30 June, 2 weeks of unpaid pandemic leave is available to all employees if:

  • the employee is required to self-isolate (as required by the government, a medical practitioner, or other medical authorities); or
  • the government has taken measures such as an enforceable government direction which restricts nonessential businesses.

The leave must start before 30 June 2022 but can finish after this date.

The unpaid pandemic leave: 

  • is available immediately (not required to be accrued) 
  • can be used before any paid leave entitlements
  • is available to all employees (full time, part time or casual) 
  • does not affect other entitlements and counts towards service for other entitlements such as the accrual of annual leave.

To access this leave, employees must advise their employer of their intention to take this leave and the reason why. This should be done as soon as possible, however does not need to occur before the leave has started.

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 Modern Awards and the FW Act.
Scenario Type of leave
Employee is sick
  • Personal leave (where available), or unpaid leave. An employer can request evidence of the need to take leave.
  • Accrued annual leave where paid personal leave is not available.
    		•
    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.
  • Accrued annual leave where paid personal leave is not available.
    		•
    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 use 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).

    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.

    Further information regarding stand down.

    		•
    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.
    		•

    Financial support for employees impacted by COVID-19

    Employees can apply for the Pandemic Leave Disaster Payment through Services Australia if they have suffered a loss of income due to having to self-isolate or quarantine because of COVID-19. 

    From 18 January the Pandemic Leave Disaster payment will be determined based on the number of hours work the employee has lost or expects to lose during an isolation period of up to seven days:

    • Employees who have lost or expect to lose 20 hours or more will be entitled to $750.
    • Employees who have lost or expect to lose at least a day of work or up to 19 hours will be entitled to $450.

    In order to be eligible, an employee must be required to self-isolate or quarantine for one of the following reasons:

    • They have been informed by a health official that they are a close contact with a person who has COVID-19.
    • They are caring for a child, 16 years or under, who has COVID-19.
    • They have been informed by a health official that a child they care for who is 16 years or under, is a close contact with a person who has COVID-19.
    • They are caring for someone who has COVID-19.
    • They are caring for someone with disability or a severe medical condition who must self-isolate or quarantine because they’re a close contact of a person with COVID-19.

    The employee must also:

    • be at least 17 years old
    • be an Australian resident or hold a visa that provides work rights
    • live in Australia at the time of the claim and during the self-isolation, quarantine or caring period
    • be unable to go to work and earn an income because they have to self-isolate, quarantine or care for someone who has to self-isolate or quarantine
    • have no sick leave entitlements.

    To find out more, contact HIA's Workplace Services team

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