COVID-19: when can staff take personal/carer’s leave?

When are employees entitled to call on their personal/carer’s leave to deal with family circumstances caused by COVID-19?

The Coronavirus (COVID-19) pandemic raises a number of important workplace relations issues, including employee leave entitlements under the Fair Work Act 2009 (FW Act) which are discussed below.

COVID-19 and personal/carer’s leave entitlements

Under the FW Act, full-time and part-time employees are entitled to access their accrued paid personal/carer’s leave if:

  • the employee is not fit for work because of a personal illness or personal injury; or
  • to provide care or support to a member of the employee’s immediate family or a member of the employee’s household because of a personal injury, personal illness or unexpected emergency affecting the member.

There is no limit to on the number of days of accrued leave that can be taken as personal/carer’s leave.

Casual employees are not usually entitled to paid personal/carer’s leave because the standard 25% casual loading includes compensation for this entitlement.

Under the FW Act, casual employees are entitled to two days of unpaid carer’s leave per occasion.

Also, full-time and part-time employees can take unpaid carer’s leave if they do not have any accrued paid personal/carer’s leave left. Under the general protections in the FW Act, employees are protected from being dismissed as a result of a temporary absence due to an illness or injury.

Childcare centre or school shut down due to COVID-19?

Under the FW Act an eligible employee can take any of their accrued paid personal/carer’s leave to provide care or support to a member of the employee’s immediate family or household who required care or support because of ‘an unexpected emergency’.

The meaning of an ‘unexpected emergency’

In a Federal Circuit Court decision on this matter it was held that an ‘unexpected emergency’ included circumstances where a mother of a primary-school-aged child was unable to make alternative arrangements and left work early to collect her son from school, giving her employer one day’s notice.

There would be little doubt that if a school closed in the middle of a particular day due to COVID-19 and a parent had to leave work to pick up a child to care for them, this would be an ‘unexpected emergency’.

It might also be the case that if a school closed suddenly and the school closure lasted for two days while the school was thoroughly cleaned that this would be an ‘unexpected emergency’.

However, the idea that an ongoing school closure is an ‘unexpected emergency’, in Ai Group’s view, is not correct.

For example, if there was only one day’s notice of an ongoing school closure then the first day and perhaps even the second day may be regarded as an ‘unexpected emergency’ but then the event ceases to be ‘unexpected’.

After this time, an employee would most likely need to use other leave (such as annual leave) to continue to be paid for their absence or flexible working arrangements could be undertaken where, for example, the employee works after hours.

Where do I find more information?

Ai Group’s Complimentary Offer

Ai Group is offering the following services and information to your business:

  • Access to experienced Industrial Relations advisers on our COVID-19 IR Advice Line: 1300 312 733
  • Access to our COVID-19 IR Advices on our website & the ability to sign up to alerts
  • Access to Online Employer IR Webinars, Podcasts and Industry Sector Meetings which allow you to engage with Ai Group’s IR experts and your peers live during the sessions. You can also access webinars and podcasts on-demand later to review with your team.

Take advantage of our offer now

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