If I catch COVID during my annual leave, what happens?
After a grueling year battling the COVID-19 pandemic, many Australians were looking forward to going offline for a summer break. As we all know, the Omicron variant had other ideas.
Instead of laying by a pool sipping daiquiris, thousands of people are sick with COVID, caring for someone with COVID, or self-isolating after being identified as a close contact.
Luckily, most people don’t have to use their precious annual leave while sick at home, because they can go on sick leave. But how does it work ?
Can you take sick leave when you are on annual leave?
It’s true. Under the Fair Work Act, if an employee is ill or injured while on annual leave, the employee can use their paid sick leave entitlement to cover the time off instead of their annual leave.
It does not matter whether the annual leave has already been booked and approved or has already started; the employee always has the right to turn it into sick leave.
Is this some sort of special pandemic arrangement?
No, it’s a long-standing rule. This applies if you become ill with an illness, not just COVID-19. This also applies if you are injured.
Does this apply to everyone?
The Fair Work Act covers almost all employees in Australia. The main exceptions are certain state and local government employees who fall under various state systems.
Almost everyone falls under the national system. It doesn’t matter if you are on a contract, an individual contract or a company agreement. A spokesperson for the Fair Work Ombudsman said annual leave and sick or carer leave are minimum entitlements under national employment standards. This means that an employer cannot take away these rights even if you agree.
But casual employees and contractors are excluded because the Fair Work Act says they are not entitled to vacation or sick leave. Instead, they may be able to apply for pandemic leave pay from the federal government. The criteria for these payments specifically exclude people who have received or will receive income from paid work, or with sick or compassionate leave entitlements.
Are there limits?
Under the Fair Work Act, the employer has the right to require the employee to provide notice and evidence when taking sick or compassionate care leave during annual leave (more details below). below).
How does sick notice work?
You won’t know you’re sick until you’re sick, so giving advance notice can be difficult. Brad Annson, a partner at Gordon Legal and an expert in industrial and employment law, says there is no set notice period. On the contrary, fair work law requires that employees only notify their employers “as soon as possible” and it depends on the circumstances.
“If someone got really sick quickly, ‘as soon as possible’ might be a longer time frame,” Annson says.
“You have the right to convert annual leave into personal leave from the time you become ill, for the duration of your illness, as long as you have accrued leave – so it can be retroactive.”
The Fair Work website says the usual rules for taking sick leave apply – let the employer know as soon as possible.
What about the employer’s right to request evidence?
The employee is only required to provide evidence if the employer formally requires it and this would be stipulated in the employment contract.
Usually this means a medical certificate from a doctor or a statutory declaration signed by the employee. During a pandemic, this may not be practical if you are legally required to self-isolate.
Requests for medical certificates are an unwanted burden for GPs in the current crisis, says Dr Karen Price, president of the Royal Australian College of General Practitioners.
“The health care system as a whole and general practice in particular is completely at a crisis point, and we have to manage this workload very carefully and protect this resource for sick people,” Price says.
“Adding bureaucratic or administrative activity to that would be highly undesirable at this time.”
Price says people who might test positive for COVID should be home in quarantine and not attend GP clinics. They could request a telehealth appointment if necessary, but it would be better if the employer accepted another form of proof, such as a statutory declaration, or chose to trust their employees.
Annson says the Fair Work Act says the employer must accept evidence that a “reasonable person” would accept. This could include sending the text message confirming a positive PCR test result or showing a photograph of a positive rapid antigen test. He points out that the employee could always follow up with a medical certificate or statutory declaration at a later date.
“You’re hoping that given the current prevalence of COVID-19, employees won’t need an onerous process to provide evidence,” Annson says.
I’m not sick, but a member of my family is. What can I do?
You can take carer’s leave if you need to help care for a member of your immediate family or household. Caregiver leave and sick leave technically come from the same pool of leave entitlements, also known as personal leave.
Immediate family includes an individual’s spouse or common-law partner, child, parent, grandparent, grandchild, or sibling of the employee or the employee’s spouse or common-law partner. employee. A spokesperson for the Fair Work Ombudsman said this could include a current or former spouse or partner that a person does not live with, but that would depend on individual circumstances.
The household includes anyone living in the same residence, even if they are not part of the immediate family.
I am a close contact and need to self isolate but my family and I are not COVID positive so far. What can I do?
The Fair Work website says an employee who needs to quarantine or self-isolate should contact their employer to discuss leave options or flexible work arrangements. This may include annual leave, sick and compassionate care leave, unpaid leave or other paid leave.
The website also states that if an employee requests to cancel their approved vacation leave and work instead, an employer should not unreasonably deny the request.
If you are denied sick leave and cannot work from home, you may be able to take unpaid leave. In this case, government payments could come into play.
The pandemic leave disaster payment covers people who are self-isolating because they are close contacts, not just those who have tested positive. A spokesperson for the National Recovery and Resilience Agency said the payment may be available if the person has exhausted their sick leave entitlements or cannot access their sick leave because they have to s isolate but is not really sick.
There are also state-based payments for testing and isolation, although you cannot claim both federal and state payments. While these payments are generally not available if the worker is already receiving income, the same point about inability to access sick leave may apply.
Of course, if you self-isolate and you or a member of your household or close family subsequently become ill, then you can convert to personal leave from that point on.
What if your employer refuses to convert your annual leave into personal leave?
The employee should insist on this, says Annson. If the employer still refuses to comply, then the employee can seek help from a union or the Fair Work Ombudsman, or seek legal advice and take action if necessary.