Dealing with employees’ requests for leave during the pandemic | AMA (WA)

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Dealing with employees’ requests for leave during the pandemic

Friday March 4, 2022

Jenny Edinger, Special Counsel Panetta McGrath Lawyers

The foreshadowed opening of WA’s borders is likely to result in a significant increase in demand by employees for leave due to:

  • COVID-19 illness of an employee, or of an employee’s dependent;
  • employees having to quarantine or self-isolate;
  • employees having to home-school children;
  • employees not being able to source care for children and elderly or disabled relatives due to a lack of service availability, such as a temporary shut-down of a childcare centre due to a COVID-19 exposure.

It is fair to say that employee leave entitlements have not been developed taking into account the implications that COVID-19 could have for employees and their families. Accordingly, there is potential for real mismatch between employee expectations and their legal leave entitlements, which will complicate leave administration by employers, and potentially place pressure on the employee-employer relationship.

With the above in mind, we set out below a summary of the current leave entitlements available to employees.

Source of leave entitlements

An employee’s entitlement to leave is found in their contract of employment, an applicable award or industrial instrument, or in relevant employment legislation, or a combination of these sources. Where the terms of an employee’s contract differ from their statutory entitlements, they are entitled to whatever is most beneficial.

For example, if a registered nurse’s contract provides for accrual of four weeks’ paid annual leave per annum, whereas the relevant award provides for five weeks per annum, then the nurse is entitled to the more beneficial entitlement of five weeks per annum.

The parallel State and Federal employment law systems may create some confusion as to an employee’s entitlements. As a rule of thumb in Western Australia, if a practice is operated through a corporation or by corporate trustee, then the employee’s employment is covered by the Fair Work Act 2009 (Commonwealth) and by the related Federal Modern Awards (the employee is a national system employee).

Whereas the employment of an employee engaged by a practice operated by a sole trader or a partnership is regulated by the State system of employment law, that is by the Industrial Relations Act 1979 (WA) and the related State Awards (the employee is a state system employee).

When an employee or their dependent is unwell due to COVID-19

Whether in the State or Federal system, if an employee is unwell due to COVID-19 and unfit for work, then the ordinary provisions for personal (sick) leave apply. That is, permanent full-time or part-time employees are entitled to utilise their accrued personal (sick) leave entitlements.

If a permanent employee needs to care for a dependent who is sick with COVID-19, then they can access carer’s leave, which entitles them to use any personal (sick) leave they have accrued to take time off to care for the dependent.

If a permanent employee needs to provide care or support because of an unexpected emergency affecting a dependent, then paid personal/carer’s (sick) leave may be taken. State and Federal regulators have taken the view that unexpected closures of schools or childcare facilities during the pandemic meet the criteria for an unexpected emergency.

Permanent employees who have exhausted their paid personal (sick) leave entitlements, and casual employees are entitled to two days of unpaid carer’s leave on each occasion to care for a dependent who is ill, or who needs care or support due to an unexpected emergency, but employers and employees can come to an agreement for the employee to take an increased period of leave.

However, employees are not entitled to take personal leave in circumstances other than these.

Unpaid pandemic leave for national system nurses and practice administrative staff

Support staff such as nurses and administrative staff who are national system employees can access up to two weeks’ unpaid pandemic leave, if they’re prevented from working:

  • as a result of being required to self-isolate by government or medical authorities, or acting on the advice of a medical practitioner; or
  • by measures taken by government or medical authorities in response to the pandemic.

The leave is available to full-time, part-time and casual employees. Full-time and part-time employees don’t have to use all or any of their accrued paid leave before accessing unpaid pandemic leave.

State system employees do not currently have an entitlement to unpaid pandemic leave

As at the time of writing (10 January 2022), state system employees do not have an entitlement to unpaid pandemic leave, but it is still open for employers and employees to agree for an employee to take a period of unpaid leave.

Certain national system employees have a right to request flexible work arrangements

National system employees who are carers, parents of a school-aged child (or younger), have a disability, or who are over the age of 55 years have the right to request flexible work arrangements.

Flexible work arrangements can include working from home, or altering start and finish times. The request must be in writing, and an employer is required to provide a written response to that request within 21 days. An employer may refuse the flexible work request if there are reasonable business grounds to do so.

Other leave

Employees’ usual annual leave and long service leave entitlements will continue to operate in the period, and normal leave application processes in the workplace apply.

However, it would be prudent for employers to take a flexible and compassionate approach to such leave applications at this time, given the narrowness of personal leave entitlements in the context of managing COVID-19 implications for employees and their families.