Many Australians unfortunately became unwell with COVID-19 over the Christmas/New Year period or had to isolate while waiting for their test results.
This meant that employees were sick during a period that they were on annual leave because of a company shut down over the holiday period. Some employees may have asked their employer whether they can get paid their sick leave instead of annual leave.
Sick leave under the Fair Work Act
Under the Fair Work Act (FW Act) an employee is entitled to take personal leave, also known as ‘sick leave,’ when they are unfit for work because of an illness or an injury, or they must provide care or support to someone in their immediately family or household who needs care or support because of an illness or injury affecting them.
An employee who wants to access their sick leave needs to provide notice to their employer as soon as practicable and advise them of the expected duration of the leave.
If the employer requires the employee to provide evidence that they were unwell, the employee needs to comply.
Annual leave under the Fair Work Act
Section 89(2) of the FW Act provides that an employee is not taken to be on a period of annual leave if such period includes a different type of leave, such as sick leave.
This means that an employee can convert their annual leave to sick leave. However, an employee who wants to make such a request must still comply with the usual notice and evidentiary requirements for sick leave under the FW Act including any company policies or procedures.
What kind of evidence would be acceptable if an employee informs us that they have COVID-19?
The evidentiary requirements as set out in section 107 of the FW Act requires employees to provide evidence that would “satisfy a reasonable person”. Previously when someone was unwell, they were able to provide a medical certificate from their doctor to provide the required evidence.
When it comes to COVID-19, some states are now accepting positive Rapid Antigen Tests (RATs) as evidence of a person being a ‘confirmed’ or ‘probable case’ of COVID-19 and requiring people to register their positive RAT result with the government. This is because testing queues for PCR tests are so long, and there have been lengthy delays in getting results back.
In the instance that someone receives a text message confirming a positive result of a PCR test or confirming registration of a positive RAT result, this could be acceptable satisfactory evidence.
If there are company policies or procedures regarding the taking of sick leave, then these should be referred to as well as any terms of a modern award or employment contract.