[Australia] Employees who get COVID on annual leave could reclaim holiday

COVID-19 appears to be on the decline in Australia but it remains likely that many people will eventually test positive and often at a time when they had much nicer things planned. The good news is that it is not a given that getting COVID, or any illness, while on booked time off from work means you have to write off those precious days, The Latch reports.

Pooja Kapur - an employment lawyer with the Sydney firm Owen Hodge Lawyers - told The Latch that this predicament is a pretty common one right now.

“With much of the country opening up just before the holiday period, alongside a fast-growing Omicron outbreak, many of us have been struck down with COVID-19 while on leave,” she said.

“Many Australians have found themselves unwell and forced to isolate during their leave period. It’s no wonder many are questioning whether they are able to shift their annual leave to sick leave. Most of us would prefer to preserve our annual leave for when we can actually enjoy it!”

When it comes to leave changes, Ms Kapur said that Australians have little to fear because the law is very much on their side. She explained that employers are required to offer their employees the option to convert annual leave to sick leave under the Fair Work Act.

“If you test positive for COVID-19 while on annual leave, you have the right to convert your annual leave to sick leave for the duration of your illness. This is true for any illness or injury which occurs while you’re on annual leave,” she said.

The only exception is casual employees or contractors who generally aren’t entitled to annual or sick leave.

A Fair Work Ombudsman spokesperson confirmed this, telling The Latch that “an employee who is on, or decides to take, annual leave during a quarantine or self-isolation period can instead take their accrued sick leave if they become ill or injured.”

“That means their sick leave balance will be deducted instead of their annual leave,” they said.

While the rules around this precede COVID-19, the current situation has “shone a light on them,” Ms Kapur said. “I suspect many employers and employees hadn’t realised this entitlement existed, as they may never have experienced it until now”.

A simple text or an email to a manager requesting the change ought to be enough but some employers will ask for proof. Employers are legally allowed to request evidence of illness or injury that “a reasonable person” would accept before allowing the change of leave. Failure to do so could result in the request being denied, something Ms Kapur said would be unfair but not illegal.

“Under ordinary circumstances, that may have involved the employee sourcing a medical certificate,” she said. “In the current environment, it’s impractical to expect COVID-19 positive people to visit their GP for a medical certificate, especially given the need to isolate.

“Instead employers may opt to request a text message confirming a positive PCR test or a photo of a positive rapid antigen test. Another option is requesting a statutory declaration from the employee which states they were COVID-19 positive during their leave period.”

Employees who end up caring for someone with COVID can also request that their annual leave or sick leave be converted to carers’ leave. This is also protected under the Fair Work Act and the same evidentiary requirements would reportedly need to be made as with the change to sick leave.

The Fair Work Ombudsman spokesperson said that letting an employer know about plans to change your leave application has to be done as soon as possible, something Ms Kapur echoes.

“I would encourage employees to inform their employers of their illness in writing as soon as possible, rather than when they return to work, even if they have not yet obtained the necessary evidence. This will help employers have a record of how many sick days were required, and keep track of COVID-19 isolation periods.”

Source: The Latch

(Quotes via original reporting)

COVID-19 appears to be on the decline in Australia but it remains likely that many people will eventually test positive and often at a time when they had much nicer things planned. The good news is that it is not a given that getting COVID, or any illness, while on booked time off from work means you have to write off those precious days, The Latch reports.

Pooja Kapur - an employment lawyer with the Sydney firm Owen Hodge Lawyers - told The Latch that this predicament is a pretty common one right now.

“With much of the country opening up just before the holiday period, alongside a fast-growing Omicron outbreak, many of us have been struck down with COVID-19 while on leave,” she said.

“Many Australians have found themselves unwell and forced to isolate during their leave period. It’s no wonder many are questioning whether they are able to shift their annual leave to sick leave. Most of us would prefer to preserve our annual leave for when we can actually enjoy it!”

When it comes to leave changes, Ms Kapur said that Australians have little to fear because the law is very much on their side. She explained that employers are required to offer their employees the option to convert annual leave to sick leave under the Fair Work Act.

“If you test positive for COVID-19 while on annual leave, you have the right to convert your annual leave to sick leave for the duration of your illness. This is true for any illness or injury which occurs while you’re on annual leave,” she said.

The only exception is casual employees or contractors who generally aren’t entitled to annual or sick leave.

A Fair Work Ombudsman spokesperson confirmed this, telling The Latch that “an employee who is on, or decides to take, annual leave during a quarantine or self-isolation period can instead take their accrued sick leave if they become ill or injured.”

“That means their sick leave balance will be deducted instead of their annual leave,” they said.

While the rules around this precede COVID-19, the current situation has “shone a light on them,” Ms Kapur said. “I suspect many employers and employees hadn’t realised this entitlement existed, as they may never have experienced it until now”.

A simple text or an email to a manager requesting the change ought to be enough but some employers will ask for proof. Employers are legally allowed to request evidence of illness or injury that “a reasonable person” would accept before allowing the change of leave. Failure to do so could result in the request being denied, something Ms Kapur said would be unfair but not illegal.

“Under ordinary circumstances, that may have involved the employee sourcing a medical certificate,” she said. “In the current environment, it’s impractical to expect COVID-19 positive people to visit their GP for a medical certificate, especially given the need to isolate.

“Instead employers may opt to request a text message confirming a positive PCR test or a photo of a positive rapid antigen test. Another option is requesting a statutory declaration from the employee which states they were COVID-19 positive during their leave period.”

Employees who end up caring for someone with COVID can also request that their annual leave or sick leave be converted to carers’ leave. This is also protected under the Fair Work Act and the same evidentiary requirements would reportedly need to be made as with the change to sick leave.

The Fair Work Ombudsman spokesperson said that letting an employer know about plans to change your leave application has to be done as soon as possible, something Ms Kapur echoes.

“I would encourage employees to inform their employers of their illness in writing as soon as possible, rather than when they return to work, even if they have not yet obtained the necessary evidence. This will help employers have a record of how many sick days were required, and keep track of COVID-19 isolation periods.”

Source: The Latch

(Quotes via original reporting)