Personal/carer’s leave: a timely refresher
In light of the recent COVID-19 surge across Australia, it is more important than ever to understand how personal/carer’s leave functions and who is eligible.
Personal/carer’s leave, more commonly known as ‘sick leave’, is a paid leave entitlement that all permanent employees will receive, allowing them to take time off for personal illness or injury and caring for family or household members.
However, there is often confusion about when an employee is entitled to personal/carer’s leave.
What is the entitlement?
Personal/carer’s leave is provided for under the National Employment Standards.
Full-time employees will be 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.
It is paid at the employee’s base rate of pay—this means it does not include loadings, allowances, overtime or penalty rates and it will accumulate from year to year if it is not taken.
Under the Fair Work Act 2009, the National Employment Standards set out the following circumstances where an employee is eligible to take personal/carer’s leave:
‘(a) because the employee is not fit for work due to a personal illness, or personal injury, affecting the employee; or
(b) 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 because of:
i. A personal illness, or personal injury, affecting the member; or
ii. An unexpected emergency affecting the member.’
Regarding carer’s leave, the National Employment Standards define an ‘immediate family member’ as the following:
- spouse or former spouse
- de facto partner or former de facto partner
- 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.
Notice and evidence requirements
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.
Pre-booked appointments/elective surgery
There is often conjecture about medical appointments or elective surgeries that are booked in advance and whether 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 that they would be entitled to take personal/carer’s leave.
COVID-19 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 be tested for COVID-19.
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?
The employee is ordered to isolate after being deemed a close contact of a positive case and is unwell or contracts COVID-19:
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 pandemic leave.
The employee has been ordered to isolate after being deemed a close contact of a positive case but is not unwell:
First of all, whether the employee can perform their duties from home should be considered.
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.
The employee needs to provide care and support to a household or immediate family member who has contracted COVID-19:
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.
The employee was on a period of annual leave when they contracted COVID-19:
If an employee tests positive to COVID-19 while on annual leave, they are entitled to instead take personal/carer’s leave for the duration of the time they are positive with COVID-19 and unfit for work.
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-19.
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 whether this applies to your employees.
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