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On 27 July 2020, the Fair Work Commission issued a decision ([2020] FWCFB 3940) granting an entitlement to paid pandemic leave for employees working in the aged care industry who are covered by the following awards:

 

First of its kind

This is the first time the Fair Work Commission has agreed to requests to provide for paid pandemic leave in modern awards.

The majority of modern awards provide for employees to be able to access unpaid pandemic leave when they are required to self-isolate due to:

  • a requirement by government or medical authorities;
  • acting on the advice of a medical practitioner, or
  • measures are taken by the government or medical authorities in response to the pandemic (for example, an enforceable government direction restricting non-essential businesses).

 

Importantly, where an employee appears physically fit – but unable to work because of the need to self-isolate – they are unable to access paid sick leave and so (subject to any alternative agreement with their employer) would usually be unpaid for the period of self-isolation. There are concerns that in such a situation an employee will be more likely to present for work when they really should not, so that they can continue to get paid. This obviously presents risks for the spread of COVID-19.

The new measures introduced for the aged care sector provide (for the first time) for paid leave in these circumstances.

 

How will paid pandemic leave work?

The paid leave entitlement is for employees (including certain casual employees) who are required by their employer or a government medical authority or on the advice of a medical practitioner to self-isolate because they display COVID-19 symptoms or have come into contact with a person suspected of having contracted COVID-19. The leave entitlement is limited to up to 2 weeks’ paid leave on each occasion of self-isolation.

The variations take effect from Wednesday, 29 July 2020 and will operate for an initial period of 3 months (until 29 October 2020).

The Fair Work Commission made clear that this decision does not conclude the proceedings and noted that the paid pandemic leave entitlement awarded in the current urgent circumstances may require adjustment, in light of continuing developments.

 

When is an aged care employee not entitled to paid pandemic leave?

Aged care employees will not be entitled to access the new paid pandemic leave entitlements in the following circumstances:

  • the employee could instead take a period of paid personal/carer’s (“sick”) leave;
  • the employee is eligible for workers’ compensation payments as a result of contracting COVID-19;
  • the employee refuses to be tested for COVID-19 “at the earliest opportunity”;
  • the employee is a casual other than one engaged on a regular and systematic basis;
  • the employee is covered by an enterprise agreement rather than one of the three modern awards listed above.

 

How much do employees get paid when taking pandemic leave?

Full-time employees will be paid their base rate of pay for the ordinary hours they would have worked had they not been on leave. Part-time employees will be paid the greater of their agreed ordinary hours and the average of their weekly ordinary hours of work for the previous six weeks.

Regular and systematic casual employees will be paid the average weekly pay received by the employee in the previous six weeks, or where the employee has been employed for less than six weeks, for the duration of their employment.

 

How will employers afford to pay for the pandemic leave?

In its decision, the Fair Work Commission noted that the Government has announced financial assistance measures for residential aged care providers (i.e. grants for aged care providers located in COVID-19 “hotspots” or whose staff reside in “hotspots”) and stated that the assistance “will substantially reduce if not wholly remove the cost of any paid pandemic leave entitlement which might be established for the most affected residential aged care employers“.

 

Will paid pandemic leave be introduced more widely?

The Fair Work Commission left the door open as to whether paid pandemic leave would be introduced into other awards stating: “The paid pandemic leave entitlement which we have awarded in the current urgent circumstances may require adjustment, in light of continuing developments, and it is possible that future events may require the consideration of the extension of the entitlement to other awards“.

We will, of course, keep you up to date with any developments regarding a broader requirement to provide employees with paid pandemic leave.

 

About EI Legal

EI Legal is a firm of specialist employment lawyers. If you need any assistance in matters relating to employment law please contact us.

 

Disclaimer

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

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