As COVID-19 case numbers rise, many employers are now facing the challenge of managing employees who are unable to attend work because they have been diagnosed with COVID-19, are suspected as having COVID-19 or are otherwise required to quarantine under a Queensland Government Direction.
Entitlement to paid sick leave
Under the Fair Work Act 2009, employees are entitled to take paid personal/carer’s (sick) leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
- a personal illness, or personal injury, affecting the member; or
- an unexpected emergency affecting the member.
If an employee is diagnosed with COVID-19, they are clearly suffering a personal illness and not fit for work.
They must provide notice to their employer as soon as practicable, and if requested, provide evidence that the leave is taken for a prescribed reason. If an employee is unable to obtain a medical certificate, the employer may request the employee provide a statutory declaration confirming that the employee has been diagnosed with COVID-19 or ask for the provision of evidence of a positive COVID-19 test.
What if an employee hasn’t been diagnosed with COVID-19, isn’t suffering from a personal illness, but is still required to quarantine under a Queensland Health Direction?
Under the Queensland Government’s Isolation for Diagnosed Cases of COVID-19 and Management of Close Contacts Direction (No. 3), effective 10 January 2022 (the “Direction”), an employee who is considered a “close contact” must quarantine and therefore is unable to leave their premises to attend work. There are some exemptions for critically essential workers who can leave quarantine if they have no COVID-19 symptoms and are fully vaccinated.
Under the Direction, an employee will be defined as a close contact if they are a “household member” or a “household-like contact” of someone who has tested positive to COVID-19.
If an employee is deemed a close contact and cannot work from home, they are not entitled to take paid personal/carer’s (sick) leave under the Fair Work Act because they are not suffering from an illness.
An employee may be able to take paid personal/carer’s (sick) leave if they are required to provide care or support to a member of their immediate family, or a member of their household, who requires care or support because of a personal illness affecting the member. Many modern awards were updated to include provisions for 2 weeks of unpaid pandemic leave, so check if this applies (extended to 30 June 2022).
You may agree to an employee accessing other forms of paid leave such as annual leave or long service leave. Otherwise, a period of absence for a close contact to quarantine (who is not suffering from an illness), will be treated as unpaid leave.
If you have questions about managing employees’ absences due to COVID-19 or any other COVID-19 related matters, please contact our Employment Lawyer Suzanne Wishart.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.