There have been a lot of questions about how leave operates during this pandemic. HRM outlines the essential rules and breaks down some recent state and federal changes to leave entitlements.
The country seems to be settling into the new socially distanced world order, but no one can deny the changes to workplace legislation have been rapid and in some cases rather complex (see JobKeeper). To make matters worse, many changes have come so quickly that people have struggled to keep up. HR has not been immune to this struggle, especially since so many of the regulation variations pertain to workplaces.
HRM recently covered the changes to COVID-19 affected awards, but questions still remain about when an employer can actually direct an employee to take leave, and what types of leave should be taken if an employee or their loved one contracts COVID-19.
This article will cover four types of leave:
- Personal and Carers leave
- Pandemic leave
- Annual leave
- Long Service leave
The advice in this article generally pertains to workers who are not under an enterprise agreement (EA). Organisations with an EA may differ, so it is important to check those agreements before directing staff to take leave.
1. Personal & Carers Leave
A full or part-time employee who has contracted COVID-19 is obviously allowed to use personal leave if they have enough accrued. The same goes for an employee who is caring for a COVID-19 afflicted family member. The Fair Work Act outlines that staff (including casual employees), if they have exhausted paid carer’s leave, can also take two days of unpaid carer’s leave each time a household or immediate family member requires care or support.
Personal leave can also be taken when an employee needs to care for or support a member of their immediate family or household due to an unexpected emergency. School closures due to a COVID-19 outbreak are considered an “unexpected emergency”, according to the Fair Work Commission.
Employers are within their right to ask for evidence from an employee if they cannot attend work due to coronavirus or a COVID-19 related emergency.
Of course, if an employee runs out of personal leave, but still requires time off, they may request to use accrued annual leave.
2. Pandemic leave
In some cases, an employee may be eligible for unpaid pandemic leave if they’re required to isolate themselves. HRM previously covered pandemic leave, but it’s worth reviewing here briefly as it is open to full time, part-time and casual employees.
Pandemic leave can be taken if an employee has been directed to quarantine on medical advice or by the government. This option only applies to certain awards. You can see the full list of affected awards here.
If an employee has recently returned from overseas and has to attend a quarantine facility for two weeks, and is unable to work during that time, pandemic leave could be applied.
Pandemic leave can only be taken until 30 June 2020 (unless further variations are made). It is okay if the leave extends beyond 30 June, but it must start before.
Employees do not need to exhaust other leave options, such as annual or sick leave, in order to take pandemic leave.
3. Annual Leave
Before COVID-19 there were already some instances where employers could ask staff to take annual leave, usually during a shutdown period (like Christmas) or if an employee has excessive leave (this only pertains to certain awards).
Recently, the FWC expanded the powers for employers to ask some workers to use their accrued annual leave. Under some awards (see HRM’s article), employers only need to give workers one week’s notice before asking them to use their leave. However, the employee must have two weeks leave remaining after the direction. Employers are obliged to consult with the employee and are asked to consider the employee’s personal situation before directing them to take leave.
The FWC changes also give some workers and their employers the ability to agree to an arrangement where twice the amount of annual leave is taken at half pay. This applies to certain awards and all employees who are getting JobKeeper.
4. Long Service Leave
Long service leave (LSL) is regulated by the states, meaning the circumstances in which an employer can direct a staff member to take long service leave vary across the country. So far only NSW has changed their LSL regulations to adapt to COVID-19.
In all cases, a period of notice must be given if an employer directs an employee to take their LSL. This can range from one month to three depending on which state the workplace operates in.
Employers and employees are recommended to come to an agreement before LSL is taken, especially if the employer wishes the employee to take LSL at a certain time. It is also usually encouraged for eligible workers to take LSL as soon as practicable for the organisation.
Here is a brief state-by-state breakdown on where an employer can ask a staff member to take LSL, and how much notice they have to give (list excludes NSW because it has recently implemented COVID-19 changes):
- NT – Two months’ notice
- ACT – 60 days’ notice
- QLD – Three months’ notice
- SA – 60 days’ notice
- TAS – No, however, WorkSafe Tasmania can direct an employee to take leave by giving at least 6 months’ notice if the employer and employee cannot come to an agreement.
- VIC – 12 weeks’ written notice
- WA – No, an employer cannot force staff to take LSL.
The Australian Industry Group provides a more comprehensive breakdown of state rules around forced use of LSL on their website.
In New South Wales, the government recently relaxed rules for long service leave. Previously, four and one-third weeks’ notice was required when directing an employee to take LSL. Now, employers can provide less than a months’ notice as long as the worker agrees to the truncated notice period. Employees may also take a shorter period of leave, less than one month, if their employer agrees. The legislation is in effect for six months from today with the possibility of an extension to one year.
The Fair Work website has done a good job of outlining all the changes to awards. Be sure to check it before making decisions that impact your employees.
AHRI is committed to helping HR professionals cope at this difficult time, head to their dedicated COVID-19 page to see the resources available.