As Covid-19 case numbers continue and borders open, employers are now faced with the ongoing challenge of managing employees who are unable to attend work because they have been diagnosed with Covid-19, are suspected of having Covid-19 or required to isolate.

Employers and employees both have legal obligations to support workplace health and safety. Because of these obligations, employees who have Covid-19 can’t attend the workplace. They are required to immediately isolate for 7 days from the date that you had your test, so you don’t give the virus to someone else.

The best approach if an employee is unable to work and needs to isolate is to contact their employer to discuss possible leave or flexible working options.

Employer direction for an employee to not come to the workplace

Under workplace health and safety laws, employers must do what they can to ensure the health and safety of their workers and others at the workplace. Employees also have responsibilities under those laws. Further information is available under the Safe Work Australia website.

If an employer has directed an employee not to attend work in these circumstances, the employee isn't entitled to be paid unless they take paid personal/carer’s sick leave or some other type of paid leave. If they have no paid personal/carer’s sick leave, they should arrange with their employer to take some other type of paid or unpaid leave. They may be also able to apply for the Pandemic Leave Disaster Payment. 

What is Unpaid Pandemic Leave?

Some employees have access to unpaid pandemic leave for up to two weeks under their modern award if they are unable to work. This type of leave can be used if required to isolate. The leave is available to full-time, part-time, and casual employees in full and is not pro-rata or accrued over time. Employees do not have to use all their paid leave before accessing pandemic leave.

Entitlement to paid personal/carer’s (sick) leave

Under the Fair Work Act 2009, employees are entitled to take paid personal/carer’s (sick) 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 household, who requires care or support because of:

·        a personal illness, or personal injury, affecting the member; or

·        an unexpected emergency affecting the member.

If an employee is diagnosed with Covid-19, they are clearly suffering a personal illness and not fit for work.

They must provide notice to their employer as soon as possible, and if requested, provide evidence that the leave is taken for a prescribed reason. If an employee is unable to obtain a medical certificate, the employer may request the employee provide a statutory declaration confirming that the employee has been diagnosed with Covid-19 or ask for evidence of a positive Covid-19 test.

Under the Fair Work Act 2009, an employee is protected from losing their job because of their temporary absence due to illness or injury. Employees also can’t be dismissed in their employment because they have a responsibility under a workplace health and safety law to quarantine or self-isolate.

Employees can request to not go to work because of a health condition that puts them at a higher risk of getting Covid-19.

Isolation under a Government Directive

If an employee is deemed as a close contact, they must quarantine and therefore are unable to leave their premises to attend work. There are some exemptions for critically essential workers who can leave quarantine if they have no Covid-19 symptoms and are fully vaccinated.

An employee is deemed a close contact if they are a “household member” of someone who has tested positive to Covid-19 or have spent 4 hours or longer with someone in some settings since they developed Covid-19.

If an employee is deemed a close contact and cannot work from home, they are not entitled to take paid personal/carers (sick) leave under the Fair Work Act because as they are not suffering from an illness. The exception being unless they are required to provide care or support to a member of their immediate family, or their household, who requires care and support because of a personal illness affecting the member. Some modern awards were updated to include provisions for 2 weeks of unpaid pandemic leave up until June 2022.

Employers can agree to an employee accessing other forms of paid leave such as annual leave or long service leave. Otherwise, a period of absence for a close contact to quarantine (who is not suffering from any illness), will be treated as unpaid leave.

Return to work

A staff member who has completed their period of isolation and no longer has symptoms is free to return to work. You should ask them to produce a negative test before they can return to work. This is because most people who get Covid-19 will continue to test positive for some time after they have recovered, even though they no longer have Covid-19 and are no longer infectious.

More information is available on the Fair Work Ombudsman website.