How does the Coronavirus (COVID-19) affect employees’ leave entitlements?

At the risk of stating the obvious, the Coronavirus (COVID-19) pandemic is having a massive impact on the Australian workforce. With each passing day, more and more employees are being directed to work from home so as to help promote social distancing and slow the spread of the Coronavirus (COVID-19).

Whilst the current climate is unprecedented, employees are still entitled to take leave. Most part-time and full-time employees are entitled to 4 weeks of paid annual leave and 10 days of paid personal/carer’s leave each year.[1] If you’ve been employed by the same company, or in the same job across different companies for more than 7 years you may even have an entitlement to pro-rata long service leave.

Your specific circumstances will determine what type of leave you could take. Annual and long service leave are often both able to be taken in half measures, meaning you can take smaller payments over a longer period of time. This can be helpful in the longer run as less tax is payable on each payment under the PAYG regimes, meaning you might not have to wait until after 30 June to see more of your money.

What if I am sick, or I am caring for a sick family member?

If you are sick or caring for a sick family member, you can take personal/carer’s leave.

If you have exhausted your entitlement to personal/carer’s leave, discuss with your employer the possibility of taking annual leave.

If you have exhausted both your personal/carer’s leave and annual leave you may be required to take a period of unpaid leave. Remember, your employer cannot lawfully dismiss you if you are absent from work due to illness or injury, and the period of absence is less than 3 months (either consecutively or in total over a 12-month period).[2]

You may still be required to provide evidence to your employer of your illness/injury.

I am required to be quarantined, self-isolate or cannot return to work – can I take leave?

If you are required to be quarantined, self-isolate or cannot return to work, because of Coronavirus (COVID-19), your options include the following:

• if you are sick, you may take personal leave;[3]
• if you are not sick or have exhausted your personal leave entitlements, you may take annual leave or long-service leave (if eligible) if agreed to by your employer (they must agree unless it is reasonable not to do so, and in a situation such as that anticipated above, few if any refusals could be reasonable);[4]
• you may discuss with your employer the possibility of working remotely, or taking a period of paid or unpaid leave (e.g. your employer may agree for you to take annual leave in advance).

My employer has told me to not come to work – do I have to take leave?

If you are not sick and your employer nevertheless directs you to not come to work, they must continue paying you and they cannot make deductions from your leave entitlements unless:

• there has been a stoppage of work; and
• the employees cannot be usefully employed.[5]

Generally, an employer cannot stand down employees because there is a downturn in business.

How can DSA Law help?

There are many scenarios which may arise during the Coronavirus (COVID-19) pandemic.

If:

• you require legal advice about your leave entitlements or other workplace rights; or
• you are an employer and need advice as to your obligations,

please Contact Us or one of the Employment Lawyers at DSA Law on (03) 8595 9580 so we can assist you with your concerns.

[1] Fair Work Act 2009 (Cth) ss 87, 96.

[2] Fair Work Act 2009 (Cth) s 352; Fair Work Regulations 2009 (Cth) r 3.01.

[3] Fair Work Act 2009 (Cth) s 97.

[4] Fair Work Act 2009 (Cth) s 88.

[5] Fair Work Act 2009 (Cth) s 524.