News & Views

19th July 2021

FAQs: Coronavirus and Employment Payments

Can your employee take personal leave if they have been asked to quarantine and/or self-isolate?

Under the Fair Work Act 2009, an employee is only entitled to take paid personal leave (sick leave) if they are not fit for work because of a personal illness or injury, or if they have to provide care or support to a member of their immediate family because of personal illness, injury or unexpected emergency affecting the member.

Where an employee of yours has been asked to quarantine/self-isolate because they were at an exposure site or were a close contact, you should discuss their options with them, including accessing leave entitlements such as annual leave, RDOs, long service leave, etc.

Your employee can only use sick leave where they are not fit for work. For example, you have an employee who has been asked to quarantine and they use their annual leave entitlements during that period. On day 8 of their quarantine, they have been tested positive for the virus or developed some other bug. They can now access their sick leave. Alternatively, if at the start of the quarantine period the employee produces a medical certificate stating that they are unfit for work, they can access their sick leave. Depending on the instrument that covers your employee’s employment (i.e. Award, Enterprise Agreement or employment contract), you may require your employee to provide you evidence in order to take the personal leave. This evidence can be in the form of a medical certificate or a statutory declaration.

What if a worker has been diagnosed with coronavirus (COVID-19)?

An employee who is diagnosed with coronavirus (COVID-19) will be able to use any entitlement they have to accrued paid personal/carer’s leave. If the employee doesn’t have sufficient accrual or an entitlement, the employee can access unpaid personal/carer’s leave for the period they are unfit for work.

If the applicable Enterprise Agreement provides for Incolink or Protect entitlements, a worker experiencing hardship should contact Incolink/Protect for assistance.

What if an employee is experiencing some of the coronavirus (COVID-19) symptoms but has not been diagnosed?

If an employee is away from work and experiences any of the coronavirus symptoms, they must get tested for Coronavirus and not attend site until a negative test result is obtained.

An employee who has developed any of the symptoms can be considered unfit for work and may access paid personal/carer’s leave where they have an entitlement. If the medical test comes back clear, and the employee has otherwise recovered from the symptoms enough to return to work, the employee can return, provided they receive medical clearance and are fit for work.

What if an employee has been identified as having had contact with someone diagnosed with coronavirus (COVID-19)?

In the event that a employee(s) has been identified as a positive COVID-19 case on a worksite, there will be a significant number of employees, fellow employees, subcontracted workers and visitors that will or may have been in contact with the positive case.

If the employee is required to self-quarantine at home, but is otherwise well, the employee and employer may reach an agreement in relation to arrangements for the period of self-isolation including work from home, if this is feasible. Alternatively, the employer and the employee can agree for the employee to take accrued annual leave, long service leave, banked RDOs or unpaid leave subject to an entitlement. If symptoms develop, the employee can then access personal/carer’s leave.

If the applicable Enterprise Agreement provides for Incolink or Protect entitlements, a worker experiencing hardship should contact Incolink/Protect for assistance.

In what circumstances may an employer stand down employees without pay during the government directed lockdown period?

Before any employee is stood down without pay, the employer needs to carefully consider the terms of any applicable Enterprise Agreement and/or the contract of employment.

The stand-down provisions in section 524 of the Fair Work Act 2009 provides for employees to be stood down without pay in certain circumstances including during a period where a employee cannot usefully be employed because of a stoppage of work for any cause which the employer cannot reasonably be held responsible for. This is a high bar and will not apply merely to a down-turn in work or economic conditions.

The ability to stand down an employee may be available in circumstances where the employer is directed by the government to cease its operations on-site, or there are local travel restrictions or exclusions zones which result in a stoppage of work. An employee is not taken to be stood down during a period when they are taking a paid or unpaid leave that is authorized by the employer or is otherwise authorized to be absent from their employment.

If a stand down of employees is being considered, employers may seek to reach agreement with employees to access a form of accrued paid leave (i.e. annual leave or long service leave) for the period of the stand down or may agree to go on unpaid leave. Where an employee is experiencing hardship and they receive Incolink or Protect redundancy contributions, they may be able to access Incolink or Protect benefits.

Employers should be aware that a contract of employment or Enterprise Agreement may modify the ability to stand down employees under section 524 of the Fair Work Act 2009 or allow for a stand down in circumstance different to those identified in section 524 of the Fair Work Act 2009. Any employer contemplating a stand- down should seek further advice from their Workplace Relations Team.

If you have any questions about the above, please get in contact with the Workplace Relations team on 1300 300 031 or workplace.relations@neca.asn.au