In general, an employee may switch to sick leave and use that entitlement if they are sick on 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.
This isn’t a pandemic provision, it’s a longstanding rule. It applies if an employee falls sick with any illness, not just COVID-19. It also applies if they are injured.
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.
Most other employees come under the national system. It doesn’t matter if an employee is employed based on an award, an individual contract or an enterprise agreement. Annual leave and sick or carer’s leave are minimum entitlements under the National Employment Standards. An employer can’t contract out of these entitlements.
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.
The Fair Work Act requires employees only to notify their employers “as soon as practicable” and that depends on the circumstances.
Employees are entitled to convert leave from annual leave to personal leave from the moment they fall ill, for the duration of the illness, as long as you have leave accrued – so it can be retrospective.
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.
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.
An employee can take carer’s leave if they are needed to help look after a member of their immediate family or household.