Nov 4th, 2021
Personal Carer’s leave, or “sick leave”, as it is colloquially known, is a paid leave entitlement that all permanent employees will receive.
There can often be a bit of confusion as to how it actually functions, so this article will, in short, sweet fashion.
The National Employment Standards (NES) within the Fair Work Act 2009 provide for personal/carer’s leave:
Taking paid personal/carer’s leave
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or
(b) to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of:
(i) a personal illness, or personal injury, affecting the member; or
(ii) an unexpected emergency affecting the member.
It follows that an employee is entitled to sick leave if they cannot attend work, or are unable to perform their duties due to an illness or injury. This can extend from a simple cold to severe mental health distress, as well as sustained physical injuries from which the employee might need multiple months to recover from.
They are also entitled to personal/carer’s leave if they need to provide “care or support” to an immediate family member or household member in the event they were suffering a personal illness or injury, or an unexpected emergency had occurred. As an example, it may be that a parent would take “carer’s leave” to look after their child if they had fallen ill.
What is an immediate family member?
This is also provided for in the Fair Work Act 2009. It includes:
- spouse or former spouse
- de facto partner or former de facto partner
- sibling, or a
- child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner (or former spouse or de facto partner).
Pre-Booked Appointments/Elective Surgery
There is a lot of conjecture about medical appointments that are booked in advance, and whether they fall under the purview of sick leave. The key criteria is whether or not, at the time the leave is taken, the employee was unable to perform work due to illness or injury?
For example, at the time of the appointment, it may be that they were otherwise able to attend work and there was no specific injury preventing them from attending work that day, but the results of the surgery might leave them unfit for work. It is at that point they would be entitled to their personal/carer’s leave entitlements.
An employer is entitled to ask for evidence for less than one day of personal/carer’s leave to make sure the employee is entitled to such leave. It should merely be enough evidence to convince a reasonable individual that the employee is entitled to this leave, and the most common form of evidence is a medical certificate.
In an instance where an employee is required by an enforceable government direction to isolate for 14 days, or isolate until they receive a negative COVID-19 test result, but is not actually sick, it is not unthinkable to believe that sick leave might apply. It’s related to an illness, right?
This is incorrect.
While they cannot attend work, if the worker is not actually unfit for work due to an illness or injury, there is no entitlement to sick leave, and the more appropriate paid leave entitlements would be annual leave, or long service leave.
If a school is forced to close suddenly due to being an exposure site, however, this is a case where carer’s leave is applicable in the short term – it may be that an employee has to provide care or support to a young child due to this unexpected emergency.
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