Taking a COVID holiday and other emerging employment issues in managing the pandemic

COVID-19 continues to present significant challenges for business and the community. More than ever, businesses need to be flexible in responding to government restrictions in order to efficiently and effectively minimise day to day interruptions. It is just as important to communicate well and work with your employees in rolling out any changes.

The pandemic is likely to create ongoing challenges and it makes sense for businesses to consider ways of proactively addressing and managing these challenges for the long term.

Taking a COVID holiday – managing annual leave balances

With a large part of the population currently under lockdown there is a lot of uncertainty, as it feels like at any given moment, another state will announce restrictions.

Many employees are preferring to save their annual leave, in the hope that travel restrictions will be eased and they can take a well-earned break away from home. But this means that many businesses are faced with excessive annual leave balances, so what are the rights and risks of businesses to direct employees to take annual leave?

The answer to this question will depend on the modern award that applies to the employee’s employment.

The National Employment Standards (NES) generally require that an employer and employee reach agreement about when a period of annual leave is to be taken. However, if agreement cannot be reached and the employee has an excessive annual leave balance (usually 8 weeks or more accrued), the employer can direct the employee to take a period of annual leave provided that a balance of 6 weeks remains in the employee’s entitlement.

Modern awards also allow agreement on cashing out some annual leave subject to a maximum of 2 weeks in any 12 month period and maintaining a balance of at least 4 weeks annual leave.

Can an employee take sick leave to get COVID tested, get vaccinated, or during a lockdown?

Personal/carer’s leave under the Fair Work Act (FW Act) can be accessed when a person is unfit for work due to a personal illness or injury affecting them or if they are providing care or support to a member of their immediate family who is unwell.

This means that if an employee needs time off to either get tested or get vaccinated, they will not be able to access their sick leave entitlements. If an employee becomes unwell as a result of the vaccine, they will be able to access sick leave, provided that they comply with their employer’s notice and evidence requirements.

If an employee is prevented from attending work due to a lockdown, they will only be able to access sick leave if they are unwell. The employer can require the employee to comply with any notice and evidence requirements.

Can an employee take carer’s leave if they cannot attend work due to a school closure and their need to care for their children?

An employee can take carer’s leave to provide care or support to an immediate family member or household because of an ‘unexpected emergency affecting the member’. Notice and evidence requirements will apply.

An ‘unexpected emergency’ is not defined in the FW Act. The Macquarie Dictionary defines ‘unexpected’ as: ‘unforeseen; surprising’ and defines an ‘emergency’ as ‘an unforeseen occurrence; a sudden and urgent occasion for action.’

If a school closed in the middle of the day and a parent had to leave work to pick up a child, this would be an ‘unexpected emergency’. However, it is Ai Group’s view that an ongoing school closure is not an ‘unexpected emergency.’

The view of the Fair Work Ombudsman is set out on their website. The following extract is relevant:

Unexpected emergencies

Whether particular circumstances amount to an employee needing to provide care or support due to an unexpected emergency depends on the individual situation. For example, a school or childcare centre closing on short notice and for a short period because someone tested positive is an unexpected emergency. An employee has to give their employer reasonable evidence of the unexpected emergency if their employer asks for it. This will also apply to situations relating to coronavirus.

Example: Employee needs to care for a child during childcare centre closure

Alastor has just received an email from his daughter’s childcare centre. They let him know that the centre is closing immediately for 48 hours. This is because a child at the centre has tested positive to coronavirus.

Alastor immediately contacts his employer. He tells them he'll need to stay at home during the closure to care for his daughter. They discuss whether he could work from home. They 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. This is because the closure of the childcare centre on short notice is an unexpected emergency. Alastor forwards the email from the childcare centre to his employer as evidence.

When can a business stand down their workers?

Employers may be able to stand their employees down without pay during COVID-19 pandemic for various reasons. This includes when:

• the business has closed because of an enforceable government direction such as a lockdown (and the employee cannot be usefully employed, even from another location)
• there’s a stoppage of work for which the employer cannot be held responsible.
• The requirements to exercise a stand down are extremely complex and if a stand down is held by a Court or the Fair Work Commission not to meet the requirements under the section 524 of the FW Act, the employer will have an obligation to pay their employees who were invalidly stood down.
• In the context of the COVID-19 pandemic, key questions that the employer would need to ask themselves in considering whether there is a right to stand down their employees include:
• Can the employees that the employer is proposing to stand down be ‘usefully employed’?
• Has there been a ‘stoppage of work’ for the relevant employees, or is there just a significant downturn in work? A stand down relates to circumstances where there is a stoppage of work, not just a reduction in work.
• Is the stoppage of work for a cause that ‘the employer cannot reasonably be held responsible’?
• Will the stoppage of work be temporary? Stand downs are not able to continue for a long, indefinite period.