Leave Options For Self-Iso­lat­ing Employees

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.