APodA HR Advisory Service

How to navigate COVID and personal/carer’s leave

Kain Hourn

APodA HR Advisory Service

Kain Hourn helps to demystify the rules and regulations around personal/carer’s leave in light of recent COVID surges across Australia.

Confusion can exist about when an employee is entitled to personal/carer’s leave – especially in light of the recent COVID-19 surge across Australia…

More commonly known as ‘sick leave’, personal/carer’s leave is a paid leave entitlement that all permanent employees receive. It allows employees to take time off for personal illness or injury, and/or caring for family or household members.  

 

Yet confusion can exist about when an employee is entitled to personal/carer’s leave – especially in light of the recent COVID-19 surge across Australia. This article will address these areas of confusion as well as outline the criteria an employee must satisfy to be entitled to personal/carer’s leave. 

 

What is the entitlement? 

 

Personal/carer’s leave is provided for under the National Employment Standards (NES)

 

It states that full-time employees are entitled to 10 days paid personal carer’s leave per year, and part-time employees will receive this on a pro-rata basis. It can also be calculated at 1/26th of an employee’s ordinary hours of work in a year. 

 

This leave is paid at the employee’s base rate of pay – this means it does not include loadings, allowances, or overtime and penalty rates, and it will accumulate from year to year if it is not taken.  

 

What is the eligibility criteria? 

 

Under the Fair Work Act 2009, the NES sets out the following circumstances where an employee is eligible to take personal/carer’s leave: 

 

  1. The employee is not fit for work due to a personal illness, or personal injury, affecting the employee; or 
  2. To provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support due to: 
  3. A personal illness, or personal injury, affecting the member; or 
  4. An unexpected emergency affecting the member. 

 

Regarding carer’s leave, the NES defines an “immediate family member” as the following: 

  • spouse or former spouse 
  • de facto partner or former de facto partner 
  • child 
  • parent 
  • grandparent 
  • grandchild 
  • sibling, or a 
  • child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner (or former spouse or de facto partner). 

 

For example, an employee can utilise carer’s leave when they cannot attend work because their child has fallen ill, and the employee needs to care for them until they recover.  

Employers can ask employees to provide evidence for as little as one day or less off work.

How much notice and evidence are required? 

 

When an employee wants to take personal/carer’s leave, they must give their employer notice as soon as practicable and advise the expected duration of the leave period.  

 

An employer is entitled to ask an employee for evidence that shows they were entitled to take personal/carer’s leave. This evidence merely needs to be enough to convince a 'reasonable' individual that the employee has satisfied the criteria. The most common form of evidence is a medical certificate. Employers can ask employees to provide evidence for as little as one day or less off work.  

 

What about pre-booked appointments and/or elective surgery? 

 

There is often conjecture about medical appointments or elective surgeries that are booked in advance. Do they fall within the scope of personal/carer’s leave? 

In this instance, the key consideration is whether the employee was unfit for work due to an illness or injury at the time the leave was taken. 

 

At the time of an elective surgery, an employee may be otherwise fit to attend work and no injury immediately prevents them from doing so. At this stage, they have not met the criteria for personal leave. However, the results of the surgery may leave them ill or injured and therefore unfit for work. It is at that point they would be entitled to take personal/carer’s leave.  

 

What is unpaid pandemic leave? 

Unpaid pandemic leave is an additional leave entitlement for employees covered by most modern Awards. It allows for an employee to take up to two weeks’ unpaid leave if the employee is required by government or medical authorities or a medical practitioner to self-isolate and they are therefore unable to work. Or if they are otherwise prevented from working due to measures taken by government and medical authorities in response to COVID.  

 

Please note that an employee’s paid leave entitlements will continue to accrue during this period of unpaid pandemic leave, in contrast to how leave without pay normally functions. An employer can also request reasonable evidence that the employee meets the criteria for unpaid pandemic leave. 

 

Please check any relevant Award(s) to confirm if it applies to your employees. 

When you look at the fundamental eligibility criteria for personal/carer’s leave, it is quite simple – are they unwell and unfit for work? 

How to navigate COVID and personal/carer’s leave 

There has been some confusion as to how to approach leave entitlements across the course of the pandemic, particularly when permanent employees are directed by state health authorities to isolate and get tested for COVID. However, when you look at the fundamental eligibility criteria for personal/carer’s leave, it is quite simple – are they unwell and unfit for work? 

 

OPTION A: The employee is unwell, or contracts COVID 

 

Then they are entitled to take personal/carer’s leave for this period while they are unfit for work. If they have exhausted their personal/carer’s leave entitlements, they can instead take annual leave by agreement, or unpaid leave, which may be unpaid pandemic leave under certain awards.  

 

OPTION B: The employee has been ordered to isolate after being deemed a close contact of a positive case 

 

First of all, it should be considered whether the employee can perform their duties from home. If this is not feasible, they can seek agreement with their employer to take annual leave, long service leave (if applicable), or unpaid pandemic leave. An employee will only be entitled to take personal/carer’s leave if they fall ill while isolating. 

 

OPTION C: The employee needs to provide care and support to a household or immediate family member who has contracted COVID 

 

Under these circumstances, the employee would be entitled to take paid carer’s leave to support this member through their illness. At this stage, an employer can still ask for evidence that the household/family member is ill and requires care. If this leave has been exhausted, they can take annual leave, long service leave (if applicable), or unpaid leave. If the employee themselves has also been required to isolate, they may take unpaid pandemic leave. 

 

OPTION D: The employee was on a period of annual leave when they contracted COVID 

 

If an employee tests positive to COVID while on annual leave, they are entitled to instead take personal/carer’s leave for the duration they are positive with COVID and unfit for work.  

 

Need more information? 

For more information about this article, please contact the APODA HR Advisory Service on 1300 620 641 or hrhotline@podiatry.org.au. A suite of online resources (including those related to COVID) is also available for members 24 hours a day, seven days a week here

 

Disclaimer: The material contained in this publication is general comment and is not intended as advice on any particular matter.  No reader should act or fail to act on the basis of any material contained herein. The material contained in this publication should not be relied on as a substitute for legal or professional advice on any particular matter.  Wentworth Advantage Pty Ltd expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by any such person in reliance whether in whole or in part upon any of the contents of this publication.  Without limiting the generality of this disclaimer, no author or editor shall have any responsibility for any other author or editor. For further information please contact Wentworth Advantage Pty Ltd.
© Wentworth Advantage Pty Ltd 2022
[mo_oauth_login]