Getting sick is a part of life, and every employee will want or need to take time off for health-related or personal reasons at some point during their employment. Whilst personal and carer’s leave is often unexpected and can pose operational challenges for an employer, it is an entitlement that has strict parameters in place to allow employees adequate time off work to rest, recover or attend to personal matters when these arise. Considering how frequently this leave comes up in the workplace, it is vital employers are prepared for these requests and are aware of how to navigate this space compliantly.

What is personal and carer’s leave?

Personal and carer’s leave (also known colloquially as ‘sick leave’) is one of the 11 minimum entitlements provided for within the National Employment Standards (NES) under the Fair Work Act 2009 (‘the Act’).

It allows employees to take time off work to deal with personal illness or injury, caring responsibilities, and/or family emergencies.

What are employees entitled to and how does it accrue?

Under the NES, full-time employees are entitled to 10 days per year of paid personal and carer’s leave based on their ordinary hours of work. This entitlement is pro-rata for part-time employees.

This entitlement starts accumulating from the very first day of employment, and accrues from year-to-year if unused. It is not, however, payable upon termination of employment.

Whilst casual employees aren’t eligible for paid personal and carer’s leave, all employees (including casual staff) are entitled to access two days unpaid carer’s leave per instance of when a member of their immediate family or household needs care because they are sick, injured, or have an unexpected emergency.

Keep in mind that awards, registered agreements, employment contracts and workplace policies can also provide additional entitlements to sick and carers leave so it’s a good idea to check these as well when considering the entitlements for your staff!

When can employees take leave?

So, when can employees use their personal and carer’s leave? Valid reasons for taking personal and carer’s leave include where an employee:

  • Is unfit for work due to a personal illness or injury, or
  • Needs to care for or support a member of their immediate family or household due to an injury, illness, or an unexpected emergency affecting that person.

The Act contains a definition of what is considered an employee ‘immediate family’ which is an employee’s:

  • Spouse or former spouse
  • De facto partner or former de facto partner
  • Child
  • Parent
  • Grandparent
  • Grandchild
  • Sibling, or
  • Child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner (or of their former spouse or de facto partner).

This will also include step-relations and adoptive relations as well.

The meaning of ‘unexpected emergency’ is a little more nuanced, and does not need to be related to an injury or illness – it is any unforeseen or urgent event, which could include the employee needing to take time unexpectedly to pick up their child from school or some other emergency. We have a blog that explores this further which you can read here.

How much leave can employees take?

There is no minimum or maximum amount of personal and carer’s leave an employee can take at any given time, but there are limits on how much of this will be paid.

Employees can take as little or as much paid personal and carer’s leave as they have accrued. Employers can request reasonable evidence (such as a medical certificate) to support an employee’s request to take personal and carer’s leave.

Other evidence might be a statutory declaration or some other official document which confirms that the employee needed to take time off to provide care to a family member.

Where an employee needs to take personal and carer’s leave but does not have any accrued, they may either take unpaid leave or utilise their paid annual leave if they have some accrued.

What is the difference between personal and carer’s leave and annual leave?

While personal and carer’s leave can be taken to help employees recover from an illness or care for others in their household or immediate family, it is a completely separate entitlement to annual leave.

Annual leave (also know as ‘holiday pay’) allows permanent employees to take paid time off from work for their own personal lives, to rest and recharge, take vacation, or any other reason. Whilst employees can use annual leave for any reason, it must be approved by the business and taken at a mutually agreed time. Personal and carer’s leave can only be used in certain circumstances.

If an employee is on a period of annual leave and needs to take personal and carer’s leave instead (eg because they are on holiday and get sick) then they must be provided with personal and carer’s leave instead of annual leave.

How should I manage personal and carer’s leave requests as an employer?

Where an employee has gotten in touch with you to request taking personal or carer’s leave, the business should be as accommodating as possible. Keep in mind the nature of this type of leave is that it is almost always unexpected, so it is difficult to enforce an ‘application’ process that requires significant notice. Often the standard expected is for the employee to notify as soon as possible, and before their shift start time – although you can set more detailed parameters around this in a workplace policy.

As mentioned, employers can request reasonable evidence to support the employee’s request, such as a medical certificate or statutory declaration. If you intend to request your employees to provide such evidence, this should be made clear as soon as the request has been made to allow ample time for this to be provided. A workplace policy can set out your expectations regarding this, eg that a medical certificate will always be required after a certain number of days’ absence (or at any other time requested by the employer). An employee that fails to reasonably provide evidence to support their request for paid sick leave will not be entitled to take this time as part of their accrued paid leave, and the absence from work may be unpaid or potentially have disciplinary consequences.

Keep in mind that an employee cannot be terminated for taking too much personal and carer’s  leave. Any termination would need to be based on them not being able to perform the inherent requirements of their job (eg they are permanently impaired due to an illness or injury). If you have concerns about an employee’s use of personal and carer’s, please get in touch with us to seek further guidance on managing long-term absences from work.

Have further questions?

If you need guidance on managing personal and carer’s leave in your business or require assistance with a dedicated leave policy, please reach out to the HR Connect team today.

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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