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The National Employment Standards (NES) include certain rights for employees.
These include access to paid sick/carers’ leave (also known as personal leave), unpaid carers’ leave and compassionate leave. Such circumstances can be emotionally charged, so it is important that they are handled with care and in accordance with the provisions of the NES.
An employee is entitled to 10 days of paid sick/carers’ leave each year, which accumulates from year to year. The balance of any unused leave rolls over to the next year. To help calculate how much leave your employees have accrued you can use the FWO leave calculator.
An employee may take paid sick/carers’ leave if the leave is taken:
Casual employees are not entitled to paid sick/carers’ leave.
If an employee has used up all their paid sick/carers’ leave (they must do this before taking unpaid leave), or they are a casual employee, they are entitled to 2 days unpaid carers’ leave when a member of the employee’s immediate family or household requires care or support because of:
An employee may take unpaid carers’ leave as:
An employee (excluding casual employees) is entitled to 2 days of compassionate leave when a member of the employee’s immediate family or household:
An employee may take compassionate leave for a particular occasion as:
An employee’s immediate family includes a, spouse or former spouse, defacto partner or former defacto partner, child, parent, grandparent, grandchild, sibling, or child, parent, grandparent, grandchild, or sibling of the employee’s spouse or defacto partner (or former spouse or defacto partner.)
An employee must give his or her employer notice of the taking of leave by the employee. The notice:
An employee who has given his or her employer notice of the taking of leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave has been taken for the required reason.
This means that the employee must provide evidence in support of taking sick/carers’ leave. If you do require evidence (for example, a medical certificate or statutory declaration) you should incorporate this requirement into your workplace policies and/or contracts of employment.
If employers do not advise employees of these evidentiary requirements in advance then employees are only required to provide notice that they are taking leave. Similarly, retrospectively requiring your employees to provide evidence is unlikely to be considered valid.
Employees are required to produce evidence of their illness or injury if required by the employer. For example, if a workplace policy states that employees are required to provide evidence of their illness or injury when taking a period of leave then employers are permitted to request copies of such evidence before approving paid leave.
Such evidence must be evidence that would satisfy a reasonable person. A medical certificate or statutory declaration would, for example, be sufficient.
Employees are entitled to take paid carers’ leave to care for an immediate family member. Evidence must be provided if required by the employer.
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