Leave direction during Covid-19

For the last six or so weeks we have seen considerable and fast-moving change as we all adapt to the transformations that Covid-19 has wrought upon the world.   It’s stating the obvious but with so much still to learn about the virus, our lawmakers are constantly playing catch up as they try to adapt current laws and enact new ones that will allow businesses to survive and jobs to be maintained.   With so much change, there are many questions that arise so let’s take a look at an area that is impacting many of our clients – when can an employer actually direct an employee to take leave?

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What sort of leave?
There are 4 types of leave that we will look at:

1. Personal and Carers leave
2. Pandemic leave
3. Annual leave
4. Long Service leave

 
1. Personal and Carer’s Leave
Let’s do the easy ones first!  Naturally, if an employee has contracted Covid-19, they are entitled to access any of their accrued personal (sick) leave as per any other illness.  Likewise, the normal provisions apply if they are caring for an afflicted family member. 

The Fair Work Commission considers school closures due to a Covid-19 outbreak an ‘unexpected emergency’ which means personal leave can be accessed by an employee who needs to be at home with their children.  However, if the school is open and the parent chooses to not send their child to school, this is not use of personal leave and different alternatives need to be explored such as annual leave, LSL or unpaid leave. As an employer, it is up to you to determine whether or not you offer your employee the opportunity to work from home rather than use personal leave if you believe they can adequately juggle home schooling with their work and of course, if their role can indeed even be performed from home Individual circumstances will need to be assessed – obviously a machine operator can’t do this from home but an office worker who only needs a laptop and internet access may be able to manage the juggle. 
 
2. Pandemic Leave
Newly legislated pandemic leave is two weeks of unpaid leave that full time, part time and casual employees can access if they have been directed to quarantine themselves either by medical professionals or at the behest of the government.  It is available only under certain Awards which you can check here or contact HR Staff n’ Stuff and speak to one of our HR consultants for guidance. 

An employer may allow an employee to access annual leave for this purpose, however, the use of personal leave (sick leave) does not apply in this instance.

At this point, pandemic leave must commence prior to 30 June 2020 to be applicable but this may be reviewed in time.
 
3.  Annual Leave
In the pre-Covid-19 era, certain Awards allowed for employers to direct their teams to take annual leave but it was usually for shutdown periods (such as Christmas) or for individual cases where an employee had accrued disproportionate leave amounts. There were also restraints as to how much notice was required and how much leave could be directed to be used.  With consideration to the impact on business by the virus, the Fair Work Commission has reduced the constraints on employers by broadening the powers to direct leave under certain Awards.

For example, some Awards will now allow employers to provide only one week’s notice when asking them to take leave.  If the business is eligible for the Job Keeper Wage Subsidy it also provides broader ability to direct the taking of annual leave. The employee must maintain a balance of two weeks leave after taking the directed leave and the employer must consult with the respective employee/s with consideration to individual circumstances.  However, an employee may request to use all of their leave without leaving  a ‘bank’.

Additionally, the Fair Work Commission has allowed – if agreed by both the employer and the employee – that the annual leave period can be doubled but taken at half pay.  So, you could consider allowing an employee to take four weeks leave but you will only be required to remunerate them for two weeks.  Again, this is applicable only to certain Awards but also to all JobKeeper recipients so check in with the HR Staff n’ Stuff team if you are unsure if this applies to your business.
 
4. Long Service Leave
Long Service Leave (LSL) is a little more complicated as it is regulated by the states and varies across the country.  Key points to understand in relation to directing employees to utilise their long service leave are:

• NSW is the only state that has adapted LSL regulations due to Covid-19.  There is a reduction in the notification period an employer needs to provide and shorter chunks of leave time can be taken if an employer agrees.  The changes are in effect for six months but may be extended to twelve months as the situation evolves.
• You can direct employees to take LSL however there is a period of notice that must be given and this can vary from one to three months depending on the state in which your business operates.
• Best practice is to reach an agreement with your employees regarding the time frame in which you want them to use their LSL. 

 
JobKeeper brings Flexibility
The JobKeeper also allows for some flexibility when it comes to leave.  An employer can direct an employee to work reduced hours, say 3 days per week, and can then direct an employee to use 2 days per week of annual leave (so essentially JobKeeper pays the annual leave).  If you need support around introducing this option into your workplace, call us and we can guide you on legal obligations as well as how best to communicate this to your team or individual employee.
 
As always, the HR staff n’ Stuff team of experienced HR consultants is here to help if you are uncertain about your legal right and obligations when it comes to how you can direct employees to take leave during the pandemic and after the world settles again. 

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