Are your employees eligible for ‘pandemic leave’?
In light of the current effects of the economic climate due to the COVID-19 health crisis, The Fair Work Commission has recently announced plans to introduce ‘pandemic leave’, a new form of unpaid leave, as well as annual leave flexibility which includes two weeks of annual leave at half pay.
It has been designed to address gaps in current laws which are putting employees who are prevented from working, are denied from taking unpaid personal/carer’s leave, and at risk of losing their employment by following government and medical advice to self-isolate in response to the COVID-19 pandemic. Before this initiative, employees were at a higher risk of losing their jobs as employers are unable to support them during this crisis and are not entitled to any paid or unpaid leave entitlements.
These variations will be made to 103 Modern Awards that have been identified to have a ‘regulatory gap’ in the current circumstances.
Current factors limiting employee access to personal/carer’s leave
The entitlement to paid personal/carer's leave does not apply to casual employees
the National Employment Standards (NES) entitlement is to 10 days paid leave for each year of service, and it is likely that a significant proportion of employees will have used some of their entitlement and may have less than 10 days paid leave available;
as the NES entitlement increases progressively during a year of service, hence employees with less than 12 months service will have entitlement to less than 10 days paid leave; and
under the NES an employee may take paid personal leave if the leave is taken ‘because the employee is not fit for work because of personal illness’. However, an employee may be required to self-isolate because they have been exposed to someone infected with COVID-19, although the employee has not tested positive to COVID-19, is not displaying any symptoms and is not unfit for work because of personal illness.
Employees that fall into these categories may be required to self-isolate but due to the current gap in modern awards if an employer doesn’t consent to the leave, the employee is at risk of losing their employment or contravening public health directions and guidelines.
Proposed variations to modern awards
The two new measures to be introduced by the Fair Work Commission tie into the Commonwealth stimulus packages including the recently announced JobKeeper payments to support employers to continue to employ their staff through the impacts of COVID-19.
1. Unpaid pandemic leave
(a) Subject to clauses being amended, any employee may elect to take up to 2 weeks’ unpaid leave if the employee is required, by government or medical authorities or acting on medical advice, to self-isolate or is otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic in circumstances where the employee is required to work at premises operated by an employer.
2. Annual leave at half pay
(a) Instead of an employee taking paid annual leave on full pay, the employee and their employer may agree to the employee taking twice as much leave on half pay.
(b) Any agreement to take twice as much annual leave at half pay must be recorded in writing and retained as an employee record.
Read and stay up to date with the Fair Work Commission’s statement regarding pandemic leave, issued on 1 April 2020, here.