The resurgence of COVID-19 has not only ruined summer holiday plans and family get togethers. It has also thrust thousands of people into self-isolation and left them unable to attend work, with knock on effects felt by short-staffed employers and aggrieved customers.
As an employer, it is very likely you will be required to consider how to best manage a situation where an employee either tests positive to COVID-19, is caring for someone with COVID-19, or is required by a government directive to self-isolate as a close contact.
As a starting point it is recommended that if an employee is required to attend the workplace, but is unable to do so because they are self-isolating, consideration should be given to whether they are able to perform their role from home (assuming, of course, that they are well enough to do so).
If that is not possible, options for leave will need to be considered. Below is a summary of the types of leave that, depending on the circumstances, may be appropriate for self-isolating employees. It is also important to check the provisions of any relevant modern award or enterprise agreement as there may be leave provisions in excess of the minimum entitlements contained in the National Employment Standards (NES) of the Fair Work Act 2009 (FW Act).
Paid Personal/Carer’s Leave (NES)
This type of leave is available to permanent employees only. For each year of service with an employer (other than periods of employment as a casual) an employee is entitled to 10 days of leave.
Paid personal/carer’s leave is able to be taken if an employee has contracted COVID-19. It is not able to be accessed by someone designated as a close contact who is required to self-isolate but is otherwise feeling well.
Paid personal/carer’s leave is also available to those employees who may be providing care or support to a member of their immediate family or household who is ill as a result of contracting COVID-19 (people who, incidentally, would most likely be deemed a close contact in any event).
If required, an employee must give evidence to their employer that would satisfy a “reasonable person” why the leave is being taken. For employees isolating because they have COVID-19, or are caring for someone with COVID-19, that would likely be evidence of positive diagnosis (such as by a Rapid Antigen Test (RAT) or Polymerase Chain Reaction (PCR) test). A medical certificate would also be acceptable evidence, particularly if a person is unwell and are unable to get tested or are awaiting test results.
Unpaid Carer’s Leave (NES)
This type of leave is available to both permanent and casual employees, and entitles them to 2 days of leave for each occasion they are required to provide care or support to member of their immediate family or a household member who is ill as a result of contracting COVID-19.
It is important to remember that unpaid carer’s leave is only able to be accessed by permanent employees caring for someone with COVID-19 if they have exhausted their paid personal/carer’s leave.
The notice requirements are the same as for paid personal/carer’s leave.
Paid Annual Leave (NES)
This type of leave is also only available to permanent employees. For each year of service with an employer (other than periods of employment as a casual) an employee is entitled to 4 weeks of paid annual leave (5 weeks for shiftworkers).
Permanent employees who have contracted COVID-19 but do not have a sufficient amount of paid personal/carer’s leave accrued, or who are a close contact in self-isolation but are not unwell, may wish to have a discussion with their employer about using their accrued annual leave to cover a period of absence from work. If they have insufficient leave, an employer may consider agreeing to an employee taking a period of annual leave in advance of its accrual (this is not an uncommon provision in modern awards and enterprise agreements).
It is important to remember that an employer may not unreasonably refuse a request for annual leave. Obviously, whether a request is reasonable will turn on the particular circumstances; however it is unlikely that a request from an employee who is unable to attend work, who has annual leave accrued and who has no other options of paid leave available, would be considered unreasonable.
An employer dealing with a situation where an employee is required to self-isolate and is unable to access accrued paid personal/carer’s leave, but has accrued annual leave, may consider directing the employee to take that annual leave (and in so doing reduce the employee’s leave balance). Before doing so, however, employers should think twice.
An employee not covered by a modern award or enterprise agreement can only be required to take annual leave by their employer if the requirement is reasonable (such as if the employee has accrued an excessive amount of annual leave, or the employer’s enterprise is shut down). Again, what is reasonable will depend on the circumstances; however, there would undoubtedly be a risk associated with an employer directing an employee to use annual leave if they are unable to attend work due to a directive to self-isolate (particularly if that employee does not have much leave accrued, or they have expressed an intention to use their leave at a later date). In those circumstances an employer may consider discussing unpaid leave options with an employee.
Remember that if a self-isolating employee is on a period of annual leave and they are diagnosed with COVID-19, or they develop symptoms and become unwell, the employee is entitled to have their annual leave converted to paid personal/carer’s leave (provided, of course, that they provide acceptable evidence to their employer).
Unpaid Pandemic Leave (Modern Awards)
Schedule X has been in modern awards since April 2020, and provides an employee (whether permanent or casual) is entitled to 2 weeks’ unpaid leave if they are required by the government or medical advice to self-isolate and are unable to work. On 20 December 2020 Vice President Hatcher of the Fair Work Commission extended the operation of Schedule X in 73 modern awards (COVID-19 Award Flexibility – Schedule X [2021] FWC 6636) to 30 June 2022.
This leave is available to employees covered by those awards.
Again, if required, an employee must give evidence to their employer that would satisfy a “reasonable person” why the leave is being taken. For employees isolating because they have COVID-19, that would likely be a positive RAT or PCR test result, or a medical certificate. However, for those isolating because they are a close contact, but are not displaying COVID-19 symptoms themselves, the evidence they would be required to provide is less clear. It may take the form of a statutory declaration that they are a household contact, or have spent a significant amount of time with, someone with a positive COVID-19 diagnosis.
At the time of his decision VP Hatcher decided against extending the annual leave provisions of Schedule X (that is, providing employees with the flexibility to take twice as much annual leave at half pay). That was due to both a lack of consensus between the parties and because the economic circumstances at the time did not warrant it. His Honour did not, however, foreclose the possibility of a party applying for an extension of those provisions at a future date – something that has become a real possibility given the devastating impact the Omicron strain had on businesses over the summer break.
Leave Without Pay
For some employees, particularly those casual employees unable to work from home and not covered by a modern award with access to unpaid pandemic leave, there may be no other option than to take a period of leave without pay (or authorised absence from work) to cover a period of self-isolation.
It is important to remember that unlike a period of unpaid personal leave or pandemic leave, a period of leave without pay will not count as continuous service for the purpose of determining an entitlement to service-related entitlements under the FW Act (such as in relation to parental leave, or notice of termination for permanent employees). However, it will not break that service.
Long Service Leave (NSW)
In New South Wales, the Long Service Leave Act 1955 (NSW) has been amended to include special COVID-19 provisions. Those provisions include the ability for an employer and employee to agree to the employee taking a period of long service leave, of less than one month, in advance (previously leave in advance was required to be for not less than one month). There is also the ability for an employee with an entitlement to long service leave to take that leave in short blocks of not less than one day.
The COVID-19 provisions are due to end on 31 March 2022, but may be extended.
Disaster Payment
In addition to providing leave, employers may also consider whether their self-isolating employees who are unable to attend work are eligible for the Federal Government’s Pandemic Leave Disaster Payment. Further details of the payment can be found here.
The impact of COVID-19 is constantly evolving, and is impacting businesses in different way. Please do not hesitate to make contact with the employment team at Swaab should you require any assistance in navigating the effect of COVID-19 on your business.
