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If I get COVID on annual leave, can I use sick leave instead?

After an exhausting year fighting the COVID-19 pandemic, many Australians were looking forward to switching off for a summer break. As we all know, the Omicron variant had other ideas.

Instead of lying by a pool sipping daiquiris, thousands of people are ill with COVID, caring for someone who is ill with COVID, or isolating after being identified as a close contact.

Fortunately, most people don’t have to use up their precious annual leave being sick at home because they can switch to sick leave. But how does that work?

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You can switch to sick leave when you’re on annual leave?

That’s right. Under the Fair Work Act, if an employee is sick or injured while on annual leave, the employee can use their paid sick leave entitlement to cover the time off instead of their annual leave.

It doesn’t matter that the annual leave has already been booked and approved or has already started; the employee still has the right to convert it to sick leave.

Is this some sort of special pandemic provision?

No, it’s a longstanding rule. It applies if you fall sick with any illness, not just COVID-19. It also applies if you are injured.

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Does this apply to everyone?

The Fair Work Act covers nearly all employees in Australia. The main exceptions are some state and local government employees who fall under various state systems.

Pretty much everyone else comes under the national system. It doesn’t matter if you’re on an award, an individual contract or an enterprise agreement. A spokesperson for the Fair Work Ombudsman says annual leave and sick or carer’s leave are minimum entitlements under the National Employment Standards. That means an employer can’t take these rights away from you even if you agree.

But casual employees and contractors miss out because the Fair Work Act says they’re not entitled to annual leave or sick leave. Instead, they may be able to apply for a federal government Pandemic Leave Disaster Payment. The criteria for these payments specifically excludes people who received or will receive any income from paid work, or with any sick or carer’s leave entitlements.

Are there any limitations?

Under the Fair Work Act, the employer has the right to request the employee provide notice and evidence when taking sick or carer’s leave while on annual leave (more on that below).

How does providing notice of illness work?

You won’t know you’re sick until you’re sick, so giving notice could be difficult. Brad Annson, a partner at Gordon Legal and an expert in industrial and employment law, says there is no set notice period. Rather, the Fair Work Act requires employees only to notify their employers “as soon as practicable” and that depends on the circumstances.

“If someone was to rapidly fall very ill, it may be that ‘as soon as practicable’ is a longer period of time,” Annson says.

“You’re entitled to convert leave from annual leave to personal leave from the moment you fall ill, for the duration of your illness, as long as you have leave accrued – so it can be retrospective.”

The Fair Work website states the usual rules for taking sick leave apply – let the employer know as soon as possible.

What about the employer’s right to request evidence?

The employee is required to provide evidence only if the employer formally requires it and this would be set out in the employment agreement.

Usually, this would mean a medical certificate from a doctor or a statutory declaration signed by the employee. During a pandemic, this may not be practical if you are legally required to isolate.

Requests for medical certificates are an unwanted burden for GPs in the current crisis, says Dr Karen Price, the president of the Royal Australian College of General Practitioners.

“The health system in its entirety and general practice in particular is completely at a crisis point, and we need to manage that workload very carefully and protect that resource for those people who are unwell,” Price says.

“Adding a bureaucratic or administrative activity into that would be highly undesirable at the moment.”

Price says people who could be COVID positive should be home in quarantine, not attending GP clinics. They could request a telehealth appointment if necessary, but it would be better if the employer would accept a different form of evidence such as a statutory declaration, or choose to trust their employees.

Annson says the Fair Work Act stipulates that the employer must accept evidence that “a reasonable person” would accept. This could include forwarding the text message confirming positive results from a PCR test or showing a photograph of a positive rapid antigen test. He points out the employee could always follow up with a medical certificate or statutory declaration at a later date.

“You would hope that given the prevalence of COVID-19 at the moment that employees will not require an onerous process for providing evidence,” Annson says.

I’m not ill, but my family member is. What can I do?

You can take carer’s leave if you are needed to help look after a member of your immediate family or household. Carer’s leave and sick leave technically come out of the same pot of leave entitlements, also called personal leave.

Immediate family includes a person’s spouse or de facto partner, a child, parent, grandparent, grandchild or sibling of either the employee or the employee’s spouse or de facto partner. A spokesperson for the Fair Work Ombudsman says it could include a current or former spouse or partner that a person does not live with, but this would depend on the individual circumstances.

The household includes anyone living at the same residence, even if they are not immediate family.

I am a close contact and required to isolate but my family and I are not COVID positive so far. What can I do?

The Fair Work website states that an employee who is required to quarantine or self-isolate should contact their employer to discuss leave options or flexible working arrangements. This could include annual leave, sick and carer’s leave, unpaid leave or other paid leave.

The website also states that if an employee asks to cancel their approved annual leave and work instead, an employer shouldn’t unreasonably refuse the request.

If you are refused sick leave and are unable to work from home, you may be able to take unpaid leave. In this case, government payments could kick in.

The Pandemic Leave Disaster Payment covers people who are isolating because they are close contacts, not just those who have tested positive. A spokesperson for the National Recovery and Resilience Agency says the payment may be available if the person has either exhausted their sick leave entitlements or cannot access their sick leave because they are required to isolate but are not actually sick.

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There are also state-based payments for testing and isolation, though you cannot claim both the federal and state payments. While these payments are also not generally available if the worker is already receiving income, the same point about being unable to access sick leave may apply.

Of course, if you are isolating and you or a member of your household or immediate family subsequently fall ill, then you can convert to personal leave from that time.

What if your employer refuses to convert your annual leave to personal leave?

The employee should insist upon it, says Annson. If the employer still refuses to comply, the employee could then seek assistance from a trade union or the Fair Work Ombudsman, or seek legal advice and take action if necessary.

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