As Omicron has swept the country over the last few weeks, large numbers of workers have been forced to isolate at home either due to testing positive to Covid-19 or being a close contact of someone who has tested positive. While this seems to have put enormous pressure on the ability of many businesses to operate effectively, it has also resulted in many employees seeking to access their accrued personal/sick leave entitlements for the period of their isolation.
Can employees access their accrued personal/sick leave entitlements while isolating?
All full-time and part-time employees accrue paid personal leave, which includes both sick leave and carer’s leave. Put simply, sick leave is only available to employees who are unfit for work due to personal illness or injury. While carer’s leave is available to an employee to provide care or support to a member of their immediate family or household who needs care or support because they are ill or injured or due to an unexpected emergency affecting the member.
Therefore, if a worker tests positive to Covid-19 they should be entitled to access their accrued sick leave entitlements, even if they have no symptoms. Employers are entitled to request reasonable evidence that a worker has tested positive before providing paid sick leave. If an employee has tested positive while on a period of annual leave, they may request to convert the absence to sick leave.
However, if a worker cannot attend work simply because they need to isolate due to being a close contact, strictly speaking they will not be entitled to take paid personal leave. This is because they are not ill or injured and they are not absent from work in order to provide care or support to a member of their immediate family or household.
Can employees access their accrued annual leave entitlements?
If an employee exhausts or cannot access their accrued personal/sick leave entitlements for their isolation period, the employee may request to access their accrued annual leave entitlements. As a general rule, employers cannot unreasonably refuse such a request. Importantly, it would be unlawful for an employer to unilaterally decide to treat any absence from work by an employee who is isolating as annual leave.
Is there any other option?
If a worker cannot earn income because they to need to isolate and they have no accrued personal/sick leave entitlements or cannot access those entitlements, the worker may be entitled to the Federal Government’s Pandemic Leave Disaster Payment. An employee who is eligible for the Payment may be paid up to $750 gross for each 7-day period the person must isolate. Claim forms can be found on the Services Australia website.
What should employers do?
Given large Covid-19 case numbers are expected to continue in Australia for some time, employers may wish to issue a workplace policy or other type of communication to workers advising them of their rights and entitlements if they are forced to isolate due to testing positive to Covid-19 or due to being a close contact. This should help avoid any potential confusion or disputes when staff do need to isolate.
For further information regarding the above, please contact Martin Alden, Partner at email@example.com, Olivia Henson-Inkster, Trainee Lawyer at firstname.lastname@example.org, or any member of our Employment, Workplace Relations & Safety team.
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.