• The Three Bookkeeping

COVID-19: Employees Rights

Updated: Mar 26, 2020

If you are currently unsure about your Employees’ Rights to Leave and Pay due to COVID-19, please refer to the below information:

When does sick leave (personal/carers leave) apply?

According to FairWork Australia, Sick and Carer's Leave (also known as personal leave or personal / carer’s leave) allows an employee to take time off work to help them deal with personal illness, caring responsibilities or family emergencies.

Note:An employer can offer annual leave or unpaid leave (or long service leave (LSL) if applicable) if the employee has not accrued any paid sick leave (personal/carers leave).

Situations where sick leave might apply; if an employee:

  • tests positive to COVID-19 

  • is in Government directed OR optional self-isolation and is sick

  • is sick with any illness or injury

  • has to care for or support a member of their immediate family or household who is sick, injured or has an unexpected emergency including, but not limited to:

  • any illness

  • COVID-19

  • school closure due to COVID-19

  • Government directed isolation of child/ dependant due to COVID-19 (NB does not include general coverage for own Government directed isolation. This leave is offered for the unexpected care required for the child, not for the isolation itself – see below)

When does leave without pay (LWOP) apply?

Leave without pay (LWOP), or unpaid leave is an absence from employment that is authorised or approved by an employer. It is rare for LWOP to be covered under a modern award or an enterprise agreement, and is not a statutory entitlement in Australia. It is usually granted at the discretion of the employer.

An employer can offer annual leave (or LSL if applicable) if the employee requests this and has an adequate annual leave balance.

Situations where leave without pay might apply; if an employee:

  • is in Government directed OR optional self-isolation and is not sick (i.e. has returned from overseas and feels well) *

  • has come in to contact with a known case of COVID-19 and is in Government directed OR optional self-isolation and is not sick

  • has come in to contact with a suspected case of COVID-19 and is in Government directed OR optional self-isolation and is not sick

  • is stuck overseas (on a cruise ship etc) due to COVID-19

Note: Casual employees are not entitled to paid sick (personal/carer’s) leave. A casual employee who has to self-isolate or has contracted COVID-19 must not attend the workplace, without additional payments.

When does ordinary pay apply?

Ordinary pay is as the name suggests. Ordinary pay usually applies to normal hours worked during the normal span of working hours prescribed. 

Ordinary pay is usually required if an employee:

  • is requested to not come to work/isolate which is not in line with Government direction

  • is working from home (and the employer has approved this)

  • is getting an assessment for fitness for work under the direction of the employer. Following the assessment, leave and pay entitlements will revert back to normal as per this guide.

And, if an employer:

  • requests an employee to not come to work/isolate, not in line with Government direction

  • closes the business/office/location using discretion (not Government directed) as an added precaution but employee’s role does not allow for working from home (i.e. works in a café, cleaner, factory worker, manual labour, mechanic etc).

  • closes business temporarily due to a downturn in work/business (refer to redundancy if this is a prolonged situation).

When does special leave apply?

Special leave is an arrangement granted to an employee who needs to be absent from work during working hours which does not come under other types of leave. For instance, it might be worth considering setting up a new leave type for COVID-19, paid and/or unpaid for those affected. The Government may need to offer special paid leave (over and above annual leave and/or sick leave) for this pandemic. This could be delivered at a later date as part of a stimulus package for businesses.

When does stand down (no pay) apply?

An employer may stand down an employee during a period in which the employee cannot usefully be employed because of a number of circumstances including:

  • industrial action (other than industrial action organised or engaged in by the employer).

  • a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for the breakdown.

  • a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

  • A government-issued directive for closure (not at the discretion of the business). Seek further advice before actioning.

In terms of rights to leave and pay, if an employer stands down an employee during a period in accordance with the Fair Work Act, then the employer is not required to make payments to the employee for that period.

Generally, an employer would not be able to “stand down” an employee without pay just because there was a downturn in business caused by COVID-19. However, if the Government ordered a business not to open (and the employees could not be given any other meaningful work), this may well give rise to a right to stand-down.

Due to the impact of COVID-19, we’d advise you openly discuss ways to mitigate redundancy if possible. Consider talking with staff and seeking expressions of interest from employees who might agree to temporarily reduce hours, take annual leave or leave without pay where possible. 

Last Words

We encourage businesses to keep-up communication channels during this difficult time and to also pay their employees, even if no leave type is applicable. If possible, please provide remote and flexible working arrangements for your staff and listen to any questions or concerns your staff may have. As business owners ourselves, we understand your situation and realise that this will be a tough time for everyone. Please be assured that we are here for you if you need us.

Kind Regards,

Joanne, Tricia & Therese

The Three Bookkeeping & Admin Services

Credit: Employment Hero

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