Thinking | 31 July 2020

Update: the door opens on paid pandemic leave

By Melinda Bell, Fay Calderone and Rhea Karunakar 

The Fair Work Commission has announced the introduction of paid pandemic leave to employees employed in the aged care industry and who are covered by the Nurses Award 2010, Health Professionals and Support Services Award 2020 and Aged Care Award 2010 (Industry Awards).

The changes allow qualifying employees, including ‘regular and systematic’ casuals, two weeks’ paid leave on each occasion that they are prevented from working because they are required to self-isolate or quarantine due to COVID-19.

The variations take effect from 29 July 2020 and will remain in effect for three months (to 29 October 2020), though leave can finish after this date.

The entitlement to pandemic leave

Permanent and casual employees engaged on a regular and systematic basis under the Industry Awards are entitled to take up to two weeks’ paid pandemic leave on each occasion that the employee is prevented from working (including working from home) when:

  • the employee is required by government or medical authorities to self-isolate or quarantine;
  • the employee is required by their employer to self-isolate or quarantine;
  • the employee is required on the advice of a medical practitioner to self-isolate or quarantine because they are displaying symptoms of COVID-19 or have come into contact with a person suspected of contracting COVID19;
  • the employee is in isolation or quarantine while waiting for the results of a COVID-19 test; or
  • because of measures taken by the government or medical authorities in response to the COVID-19 pandemic.

Payment for pandemic leave

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For full-time employees, paid pandemic leave will be paid at the employee’s base rate of pay for their ordinary hours of work during the period of leave.

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Part-time employees will be paid for pandemic leave at the greater of their agreed hours of work, or the average of their weekly ordinary hours for the six weeks preceding the leave- whichever is the greater.

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Casual employees will be paid for pandemic leave at the average weekly pay received by the employee in the six weeks preceding the period of leave, or where the employee has been employed less than six weeks, the duration of their employment.

 

Exclusions from entitlement to pandemic leave

  • Employees who are able to work remotely or from home are not entitled to pandemic leave.
  • Employees covered by enterprise agreements are not entitled to pandemic leave, unless their enterprise agreement specifically incorporates an Industry Award (as amended from time to time). In a sector where the vast majority of employees are covered by enterprise agreements, practically speaking this means that only a small percentage of the workforce will be eligible to receive pandemic leave.
  • Eligible employees cannot take paid pandemic leave in circumstances when they are eligible to take personal/carer’s leave instead.

For example, an employee required to isolate because they are a close contact of someone infected by COVID-19 but is otherwise well, may not be entitled to paid personal/carer’s leave under the Fair Work Act 2009. In this situation, the employee would be entitled to pandemic leave.

In contrast, if the employee developed the symptoms of COVID-19 and became unwell, the employee would be entitled to personal/carer’s leave.

Employees are still entitled to workers’ compensation if they test positive for COVID-19 and their paid pandemic leave ceases (provided COVID-19 was contracted during their employment).

Notice and evidence requirements

Employees requesting pandemic leave are required to provide their employer with notice and the reason why they are taking the leave, as soon as practicable.

An employee must also, if required by their employer, provide evidence that would satisfy ‘a reasonable person’ that the leave is being taken for one of the specified reasons; and produce a medical certificate if self-isolating on the advice of a medical practitioner.

The leave is also conditional on employees taking a COVID-19 test at the earliest opportunity.

Further Industry Award changes

To supplement the paid pandemic leave entitlement, Schedule X of the Industry Awards will also be amended by extending both unpaid leave and annual leave at half pay entitlements to 29 October 2020.

Takeaways for employers

In an industry in which the vast majority of employees are covered by enterprise agreements which exclude the underpinning Industry Awards, it is unlikely that the entitlement to pandemic leave will have wide application.

While there is pressure for the entitlement to be extended beyond the aged care industry, it is difficult to see how an entitlement applied more broadly would be reconciled against the financial pressures being faced by employers Australia-wide.

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