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- How do you manage your employees’ absences and leave entitlements during a pandemic?
- Can employees be made to take personal leave?
- What if an employee is a carer for someone who is unwell?
- Can your organisation force employees to use long service leave?
How do you manage your employees’ absences and leave entitlements during a pandemic?
Decide on principles to help you manage staff and refer to these to explain your decision-making to employees. For example:
- Managers will need to work with staff to agree on flexible arrangements (such as flexible working hours for staff responsible for caring for young children or elderly family members)
- Managers will need to be more flexible when considering requests for leave
- Staff should work from home if possible
If you haven’t already done so, prepare a policy for managing pandemic-related staff absences. Your policy should cover the scenarios you may face, such as:
- an employee infected with a pandemic disease (for example, COVID-19)
- an employee caring for someone infected with a pandemic disease (for example, COVID-19)
- an employee required to care for another who is not infected during a pandemic (for example, children)
- an employee required to self-isolate under pandemic health directions
Consider including one week of ‘special leave’ – this is a one-off additional week of paid leave. You could stipulate that:
- the week of special leave can only be accessed once by an employee, and
- an employee can’t take the paid special leave when caring for someone else and then again if infected themselves (or any other combinations of circumstances)
The employee will need to consider this when deciding when to access the paid special leave.
Changes to modern awards
As a result of COVID-19, some modern awards have been subject to changes. While some temporary award changes no longer apply, some apply into 2022.
Some awards provide for two weeks of unpaid pandemic leave and the ability to take twice as much annual leave at half their normal pay if their employer agreed.
The Fair Work Ombudsman updates their guidance on temporary changes to workplace laws during the COVID-19 pandemic so organisations should review this website regularly.
Can employees be made to take personal leave?
If an employee is unwell, their employer should tell them not to attend work. The employee will be entitled to paid personal leave. If the employee doesn’t accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave to use, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.
In most circumstances, an employer can’t direct an employee to use personal leave if they aren’t sick. Personal leave is available to the employee when they are not fit for work due to a personal illness or injury (and carer’s leave is for when they need to care for or support someone who is ill or injured or who requires care or support due to an unexpected emergency).
If the employer has told the employee not to come to work as a precautionary measure, where the employee has not been diagnosed with any illness and is not showing symptoms, the employee can’t be forced to use their personal leave.
Medical clearances and leave entitlements - But, if an employer reasonably suspects an employee is unwell, they can direct the employee to have a medical examination and provide medical clearance before they return to work. This is part of an employer’s work health and safety responsibilities. But risks can arise if the employer’s direction is not reasonable (for example, if there is no sound basis for the suspicion).
As a result of COVID-19, the Fair Work Commission varied some Modern Awards. These changes meant that employees covered by these awards were entitled to two weeks of unpaid pandemic leave. This may also be a suitable leave option. Check the Fair Work Ombudsman website for the latest information on this option.
What if an employee is a carer for someone who is unwell?
If an employee is a carer for someone who is unwell, they should take carer’s leave. Carer's leave comes out of the employee's personal leave balance. If the employee doesn't accrue personal leave (for example, if they are a casual) or doesn’t have enough personal leave, the employer should consider a special leave arrangement or discuss other leave arrangements, including unpaid leave.
All employees, including casual employees, are entitled to two days of unpaid carer’s leave on each occasion they need to care for an unwell member of their family or household. Employees may also be entitled to take unpaid pandemic leave pursuant to changes to some of Australia’s modern awards (see above).
Can your organisation force employees to use long service leave?
Generally, no. You can advise employees that they may access their long service leave entitlements if they wish to, however, the conditions on which employees can take this leave is subject to the relevant state or territory long service leave legislation. For example, the employee may be required to take a minimum period of long service leave or give a minimum period of notice to the employer.
The content on this webpage was last updated in October 2022 and is not legal advice. See full disclaimer and copyright notice.
