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Sick and carers' leave - What you need to know

Your full-time and part-time employees are entitled to paid sick and carer's leave. These provisions are provided for in the National Employment Standards.

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. 

Sick/carers’ leave

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:

  • because the employee is not fit for work due to a personal illness or injury. This can include pregnancy or stress related illnesses; or
  • to provide care or support to a member of the employee’s immediate family or household due to:
    • a personal illness or injury affecting the immediate family or household member; or
    • an unexpected emergency affecting the member.

Casual employees are not entitled to paid sick/carers’ leave.

Unpaid carer’s 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:

  • a personal illness or injury affecting the immediate family or household member; or
  • an unexpected emergency affecting the member.

An employee may take unpaid carers’ leave as: 

  • a single continuous period of up to 2 days; or
  • any separate periods to which the employee and his or her employer agree.

Paid compassionate leave

An employee (excluding casual employees) is entitled to 2 days of compassionate leave when a member of the employee’s immediate family or household:   

  • contracts or develops a personal illness that poses a serious threat to his or her life; or
  • sustains a personal injury that poses a serious threat to his or her life; or
  • dies.

An employee may take compassionate leave for a particular occasion as:

  • a single continuous 2 day period; or
  • 2 separate periods of 1 day each; or
  • any separate periods to which the employee and his or her employer agree.

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.)

Notice

An employee must give his or her employer notice of the taking of leave by the employee. The notice:

  • must be given to the employer as soon as practicable (which may be a time after the leave has started); and
  • must advise the employer of the period, or expected period, of the leave.

Evidence requirements

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.

FAQs

Under the evidence requirements of the NES what does it mean when it says “if required by the employer”?
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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.

Can I require my employee to produce a medical certificate when claiming paid sick/carers’ leave?
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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.

My employee’s immediate family member is sick. Can the employee take paid sick/carers’ leave and do they have to provide evidence when claiming this entitlement?
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Employees are entitled to take paid carers’ leave to care for an immediate family member. Evidence must be provided if required by the employer.

There is an emergency and my employee claims paid sick/carers leave. What evidentiary requirements are there?
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Evidence must be provided if required by the employer.
My employee has used up all their paid sick/carers’ leave. Can they take unpaid leave and do they have to provide evidence when claiming this entitlement?
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Employees are permitted to take unpaid leave. Evidence must be provided if required by the employer.
When would compassionate leave apply? Is it paid or unpaid? Does it accrue yearly?
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An employee, is entitled to 2 days of paid compassionate leave for each occasion. Evidence must be provided if required by the employer. Compassionate leave may be taken multiple times a year or not at all. Compassionate leave does not accrue like sick/carers’ leave and is only applicable when the particular circumstances arise.

To find out more, contact HIA InfoCentre

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