Pay and leave during coronavirus
When considering our guidance, we encourage employees and employers to work together to find the most beneficial and workable solutions that suit their individual workplaces and staff. We are all facing difficult and unprecedented circumstances, and it’s in everyone’s interests to try to reach productive and cooperative solutions. Employers and employees can explore options that suit their individual needs, including taking different forms of leave (paid and unpaid), working from home, or taking extra precautions in the workplace.
JobKeeper changes to the Fair Work Act
On 9 April 2020, the Fair Work Act was amended to support the implementation and operation of the JobKeeper scheme in Australian workplaces. The JobKeeper scheme helps employers significantly affected by coronavirus to keep paying their employees. It also gives them the ability under the Fair Work Act to give directions (called ‘JobKeeper enabling directions’) and make agreements about the use of annual leave with their employees to help manage their business in certain circumstances.
If an employer is receiving JobKeeper payments on behalf of an employee, the employer must pay the employee at least the amount of the JobKeeper payment during any period of authorised leave or absence (whether paid or unpaid).
For information about all the changes, and how they apply, go to JobKeeper wage subsidy scheme.
Unpaid pandemic leave and annual leave flexibility in awards
On 8 April 2020, the Fair Work Commission made determinations varying 99 awards to insert provisions for taking unpaid pandemic leave and annual leave at half pay. Read more at Unpaid pandemic leave and annual leave in awards.
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What happens if an employee or their family member is sick with coronavirus?
Employees who are sick with coronavirus cannot attend the workplace for a period due to the workplace health and safety legal obligations that both employers and employees have.
Employers can direct employees who are sick with coronavirus not to come to work. Employers can do this if they’re acting reasonably and based on factual information about health and safety risks, which includes relying on the Australian Government’s health and quarantine guidelines.
Full-time and part-time employees who cannot come to work because they're sick with coronavirus can take paid sick leave. If an employee needs to look after a family member or a member of their household who's sick with coronavirus, or suffering an unexpected emergency, they're entitled to take paid carer’s leave. An employer cannot require an employee to take sick or carer’s leave. However, in these circumstances, the employee isn't ordinarily entitled to be paid unless they use their paid leave entitlements, or they're entitled to the JobKeeper payment.
Under the Fair Work Act, casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full-time and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left. Employers should consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
An employee must give their employer reasonable evidence of the illness or unexpected emergency if their employer asks for it. This also applies to situations relating to coronavirus.
Under the Fair Work Act, an employee is protected from being dismissed because of their temporary absence due to illness or injury.
What if an employee cannot attend work because their child’s school or childcare centre has closed due to coronavirus?
Employees who cannot come to work because they need to care for a child whose school or childcare centre has closed will ordinarily need to use paid leave entitlements to be paid for their absence.
Paid carer’s leave is available to full-time or part-time employees where the employee needs to look after a family member or a member of their household who requires care or support because of a personal illness or unexpected emergency affecting the member. Whether particular circumstances amount to an employee needing to provide care or support due to an unexpected emergency will depend on the particular facts. A school or childcare centre closing on short notice and for a short period due to concerns about coronavirus (for example, because someone at the school has tested positive) is an unexpected emergency for this purpose.
Casual employees are entitled to 2 days of unpaid carer’s leave per occasion. Full-time and part-time employees are also entitled to take 2 days of unpaid carer’s leave per occasion if they have no paid sick or carer’s leave left.
An employee must give their employer reasonable evidence of the unexpected emergency if their employer asks for it. This will also apply to situations relating to coronavirus.
Other arrangements that may be available include:
- working from home (if this is a practical option and consistent with any applicable award, enterprise agreement, employment contract or workplace policy) or other flexible working arrangements
- taking annual leave
- taking any other leave (such as long service leave or any other leave available under an award, enterprise agreement or employment contract)
- taking any other paid or unpaid leave by agreement between the employee and the employer.
Example: Employee needs to care for a child during childcare centre closure
Alastor has just received an email from his daughter’s childcare centre letting him know that the centre will be closed from tomorrow for 48 hours because a child at the centre has tested positive to coronavirus. Alastor immediately contacts his employer to let them know he'll need to stay at home during the closure to care for his daughter.
They discuss whether working from home is an option, but decide that given Alastor needs to actively care for his daughter he is unable to work at his normal capacity.
Alastor's employer lets him know that he can take paid carer’s leave because the closure of the childcare centre on short notice is an unexpected emergency. Alastor forwards the email from the child care centre to his employer as evidence.
Example: Employee needs to care for a child during school closure
Winona's children attend primary school. On Sunday she received an email from the school informing her that school holidays will be brought forward to Tuesday rather than starting holidays the Monday after. This means Winona needs to organise care for her children earlier than planned.
Usually, when Winona needs care for her children at short notice her parents help her out. However, given the Government’s social distancing recommendations, she's unable to ask her parents to look after her children.
Winona is currently working from home after her office closed down but she lets her employer know she won't be able to work at all now while she cares for her children. They discuss her leave options. As this situation is an unexpected emergency, Winona goes on paid carer’s leave until when the school holidays were expected to start.
Example: Working parents sharing care of children where school not closed
Annie and Steve’s 2 children attend a primary school in New South Wales that is still open. However, Annie and Steve decide they would prefer to keep their children at home due to the coronavirus pandemic. Annie usually works 4 days a week in an office and Steve works full-time in real estate. For the last 2 weeks, both Annie and Steve have been working from home following the closure of their offices.
Because the school is still open, and Annie and Steve have made the choice to keep them out of school, the situation doesn’t meet the requirements for carer’s leave – their children aren’t sick or injured, and it’s not an unexpected emergency. Annie and Steve can’t use carer’s leave for the time off – they have to look at other options.
Annie and Steve each discuss the situation with their employers so they can work out a plan. Annie and her manager agree that Annie can work 3 days a week from home, and take annual leave on the fourth day.
Steve’s boss agrees that he can work 3 days a week from home for the next few weeks, and take annual leave 2 days a week. They also agree one of Steve’s working days can be a Saturday (when he usually works weekdays). Both arrangements will be reviewed in a few weeks’ time.
Example: Holiday camp closure due to enforceable government direction
Kamil and Sahar’s children were due to attend a primary school holiday camp at a Gold Coast campground during the second week of the upcoming school holidays.
On 25 March, the Queensland Chief Health Officer issues an enforceable government direction directing all campgrounds in Queensland to close. The holiday camp is cancelled.
Sahar works for a medical supplies company and can’t take time off work in the school holidays. Kamil works for a construction company. He contacts his employer and explains that he needs to look after his children in the second week of the school holidays. As the camp was cancelled several weeks in advance, it’s not an unexpected emergency so he isn’t able to take paid carer’s leave for the week.
Kamil and his employer agree that he will take 3 days of annual leave and work from home on the other 2 days, when he will work in the evenings after Sahar finishes her shift.
What if an employee is stuck overseas or is required to be quarantined or to self-isolate?
Employees should contact their employer immediately if they're unable to attend work because they cannot return from overseas, are required to enter quarantine or to self-isolate because of coronavirus.
The Fair Work Act does not have specific rules for these kinds of situations so employees and employers need to come to their own arrangement. This may include:
- working from home or another location (if this is a practical option), noting they should review any applicable enterprise agreement, award, employment contracts or workplace policies
- taking sick leave if the employee is sick
- taking annual leave
- taking any other leave available to them (such as long service leave or any other leave available under an award, enterprise agreement or employment contract)
- arranging any other paid or unpaid leave by agreement between the employee and the employer.
Where an employer directs a full-time or part-time employee to stay home in line with advice, for example in line with the Australian Government’s health and quarantine advice, and the employee isn't sick with coronavirus, the employee should ordinarily be paid while the direction applies.
However, if an employee cannot work because they're subject to an enforceable government direction requiring them to self-quarantine, the employee isn't ordinarily entitled to be paid (unless they use leave entitlements or they're entitled to the JobKeeper payment). In this case, their inability to work is because of an enforceable government direction, not because of their employer.
If an employee cannot work due to travel restrictions (for example, they are stuck overseas), they're not entitled to be paid (unless they use paid leave entitlements or they're entitled to the JobKeeper payment).
Employers should consider whether their obligations are impacted by any applicable enterprise agreement, award, employees’ employment contracts or workplace policies, which may be more generous.
Example: Employee required to self-quarantine following overseas travel
Sebastian is a mechanic living in Victoria. He returned from an overseas holiday on 18 March 2020, after the Victorian Chief Health Officer gave an enforceable direction concerning overseas travel.
The enforceable direction means that Sebastian has to self-quarantine for 14 days after his arrival in Victoria. Sebastian contacts his employer immediately to let them know he cannot come into work.
Sebastian doesn't have any more paid leave available after his holiday.
His employer lets him know he can undertake some basic administrative work from home, such as ordering stock. The amount of work available will only take 3 hours a day to complete. This means Sebastian will be paid for 3 hours a day but isn't entitled to payment for the rest of his ordinary hours.
Example: Employee required to self-isolate - able to work from home
Amelia is required to self-isolate for 14 days after being in close contact with a confirmed case of coronavirus. She contacts her employer immediately to let them know she can't come into work.
After discussing the requirements of the role with her employer, they agree that Amelia can work from home during the self-isolation period as long as she feels well.
After 1 week of self-isolation, Amelia starts to feel unwell. She calls her employer to let them know the change in her health. Amelia stops working from home and takes sick leave.
When can an employee take or be directed to take annual leave?
Employers and employees usually agree for the employee to take paid annual leave. In some circumstances, employers can require employees to take paid annual leave.
Whether an employer can direct an employee to take annual leave in circumstances relating to coronavirus usually depends on what the relevant award or enterprise agreement says.
For an employer to direct an employee to take annual leave, any award or agreement that applies must include a term allowing employees to be required to take annual leave in particular circumstances, and the requirement must be reasonable. For example, awards and agreements sometimes provide that employers can direct their employee to take annual leave when:
- the business is closed, for example during the Christmas and New Year period (this won’t always apply to coronavirus related closures)
- an employee has accumulated excess annual leave.
Some awards and agreements allow employers to make these directions in a different range of circumstances. For example, the General Retail Industry Award allows an employer to require an employee to take annual leave as part of any close-down of its operations by giving at least four weeks’ notice. The Fast Food Industry Award does not allow directions to take annual leave during a close down of operations.
If there is no award or agreement that applies to the employee, under the Fair Work Act the employer can direct them to take annual leave if the direction is reasonable, which includes circumstances where the employer is shutting down its business because of the impact of the coronavirus.
Awards and enterprise agreements may also include rules about taking annual leave in advance of the employee accruing leave. Award and agreement-free employees can make an agreement with their employer to take annual leave in advance of accruing it.
Use Find my award if you’re not sure which award applies.
What about casual employees and independent contractors?
Casual employees don't have paid sick or carer’s leave entitlements under the National Employment Standards and usually are not entitled to be paid when they don't work (for example, if they miss a shift because they are sick due to coronavirus or because they are otherwise required to self-isolate).
Casual employees are paid a casual loading instead of paid leave entitlements. Employers should also consider their obligations under any applicable enterprise agreement, award, employees’ employment contracts or workplace policies.
Independent contractors are not employees and don't have paid leave entitlements under the Fair Work Act. However, there are special provisions that deem contract outworkers in the textile, clothing and footwear industry to be employees for the purposes of most protections under the Fair Work Act. Where these provisions apply, the contract outworker should be treated as an employee.