Personal/carer’s leave (also known as sick leave) under the NES is designed to help an employee deal with things like personal illness or injury, caring responsibilities, or family emergencies.
What are the minimum entitlements to paid personal/carer's leave under the NES?
An employee may take paid personal/carer’s leave if the employee is ill or injured or needs to provide care or support to a member of their immediate family or household who is ill or injured or affected by an unexpected emergency.
Who can an employee apply to take carer’s leave for?
The entitlement to take carer’s leave applies when a member of the employee’s household or immediate family requires care or support.
Immediate family is defined as:
• A spouse (including a former spouse)
• De facto partner (including a former de facto partner)
• Child
• Parent
• Grandparent
• Grandchild
• Sibling
A child, parent, grandparent, grandchild or sibling of a spouse or de facto partner (including a former spouse or de facto partner) of the employee is included in the definition.
What is an unexpected emergency?
Examples of unexpected emergencies are usually short-term ones. If a child was injured whilst playing in the school playground and needed to be collected by their parent, this would be considered an unexpected emergency.
However, unexpected emergencies are not limited to illnesses or injuries.
An employee may be able to take carer’s leave for an unexpected emergency, in an instance where the person who normally collects the child from school was unable to do so due to unforeseen circumstances. If the employee sought to take carer’s leave again the following day, then it may no longer be seen as an unexpected emergency.
How much leave is available to an employee?
Full-time employees will accrue 10 days of paid personal/carer’s leave for each year of service. Part-time employees will accrue the entitlement on a pro-rata basis. Any untaken personal/carer’s leave will accumulate from year to year.
Casual employees are entitled to unpaid carer’s leave.
What are the notice and evidence requirements?
To access paid personal/carer’s leave or unpaid carer’s leave, an employee must provide the employer with notice of the taking of the leave as soon as practicable. In some circumstances, the notice may be given after the leave has started. When notifying the employer of the absence, the employee must inform the employer of the period or expected period of leave.
An employer can require the employee to provide evidence that would satisfy a reasonable person that the leave is being taken for a reason or permissible occasion set out under the FW Act. In the case of carer’s leave, evidence could be in the form of a medical certificate or a statutory declaration.
Does personal/carer’s leave get paid out on termination?
In most circumstances, personal/carer’s leave does not get paid out when employment ends. However, employers should check the employee’s employment contract and modern award to determine if the employee has an entitlement to be paid their balance upon termination.
Can personal/carer’s leave be cashed out?
In most circumstances personal/carer’s leave cannot be cashed out. However, employers should check the employee’s employment contract and modern award to determine if the employee can apply to have the entitlement cashed out.
Can personal/carer’s leave be taken to attend medical appointments?
Where possible, medical appointments should be scheduled outside of the employee’s normal working hours.
The entitlement to take personal leave will depend on the reason for the employee’s attendance and whether the employee is unfit for work during that time.
For example, if the employee is attending a general check-up at the dentist, it would be unlikely that the employee is unfit for work. If the appointment cannot be scheduled outside of working hours, the employee may apply for annual leave instead.
However, if the employee was having major dental surgery, they could be unfit for work and this would allow them to take personal leave.
If an employee needs to take a family member to a medical appointment because that person cannot safely travel to or from that appointment on their own, the employee may apply for carer’s leave. The employer can require the employee to produce evidence that they were caring for that person during the period.
Can personal/carer’s leave be granted in advance?
Unlike annual leave which may be granted in advance depending on the applicable modern award , personal/carer’s leave cannot be granted in advance.
This means that if an employee has no paid personal/carer’s leave left, then the leave will be unpaid.