With the current increase in the number of COVID-19 cases over the holiday period around Australia, many of us have found ourselves being caught in isolation. Unfortunately for a lot of people, it means having to spend their accrued annual leave either being sick with COVID-19 or in isolation as a result of being a close contact of a COVID-19 positive case. Unsurprisingly, many employees have questioned whether they can recuperate their annual leave or recharacterise their leave as personal leave.
Can employees substitute their taken annual leave for sick leave?
Section 89 of the Fair Work Act 2009 states that an employee is taken not to be on paid annual leave during a period of absence which includes a period of any other leave (such as personal leave).
Should an employee contract COVID-19 and fall ill during a period of annual leave, employees may be able to access their paid personal leave entitlement if:
1. the personal leave is taken because the employee:
(a) is not fit for work because of a personal illness, or personal injury, affecting the employee;
(b) is providing care or support to a member of the employee’s immediately family or a member of the employee’s household who requires care or support because of a personal illness or injury or because of an unexpected emergency;
2. the employee gives notice to their employer as soon as practicable of their absence and the expected period of the leave; and
3. required by the employer, the employee gives evidence that would satisfy a reasonable person that the leave is taken for a permitted reason.
An employee who fails to provide evidence to their employer upon request of the employer may not be entitled to be paid for a period of personal leave.
What if I am isolating due to being a “close contact”?
Unfortunately the Fair Work Act 2009 does not allow an employee who is not sick but isolating due to being a close contact to use their sick leave in place of annual leave. Employers and employees may be able to come to their own arrangements in these circumstances.
However, if you are isolating and are providing care for an immediate family member or household member who is unwell with COVID-19, you may be able access your carer’s leave entitlements.
What if I don’t have any paid annual leave or personal leave?
For employees who do not have any paid leave entitlements available or for those workers who are not entitled to accrue paid leave entitlements (such as casual employees or contractors), there are other options available.
The Victorian Government is offering a one-off Pandemic Leave Disaster Payment to help Victorian workers who are required to self-isolate or quarantine for 7 (or more) days, or to care for someone who has been directed to self-isolate or quarantine. From 18 January 2022, if a worker has lost (or is expected to lose) at least 20 hours of work, they may be entitled to receive a payment of $750. Alternatively, if a worker has lost (or is expected to lose) between 8 to 19 hours of work, they may be entitled to receive a payment of $450.
The Victorian Government is also providing a COVID-19 Test Isolation Payment of $450 to support Victorian workers (including parents and guardians) who are required to self-isolate while waiting for the results of a PCR COVID-19 test.
If you have any questions regarding your leave entitlements please contact our Workplace Relations team today to make an appointment to discuss your individual circumstances and how we can assist.