September 5, 2019
When an employee falls ill, they can access personal leave. If a family member falls ill and the employee takes time off to care for them, an employee can access carer’s leave.
Under the National Employment Standards, permanent workers in Australia are entitled this leave. Personal and carer’s leave is combined into a single entitlement.
The minimum entitlement is 10 days per year, while casual workers will not entitled to paid personal or carer’s leave.
It is vital for employers to understand these two types of leave, and their obligations. This page will cover that, as well as how much leave an employee can take, and when an employer can reasonably refuse personal or carer’s leave.
Personal leave is for employees who cannot work due to a temporary illness or injury and requires time off for recovery. It is also known as sick leave.
To be eligible for personal leave, an employee must present evidence that their illness or injury prevents them from working.
If an employee wishes to take time off to care for a member of their immediate family or household, then they can take carer’s leave. The NES sets out who is considered “immediate family or household”.
Before you approve a request for carer’s leave you should clarify the relationship between the employee and the affected family member.
An employee can take carer’s leave if a family member is ill, injured or finds themselves in an emergency.
Like personal leave, employers can request evidence of the need for support. This can be in the form of a medical certificate, doctor’s letter or statutory declaration.
If a member of an employee’s immediate family or household dies, or contracts a life-threatening illness or injury, an employee can take compassionate leave.
All employees in Australia are entitled to compassionate leave, under the NES.
Permanent employees receive paid compassionate leave and all employees are entitled to two days of compassionate leave per year.
An employer can refuse an employee’s request for carer’s leave if their family member doesn’t fall under the Fair Work Act’s definition of immediate family.
The Fair Work Act defines immediate family as the employee’s and their spouse’s/partner’s:
Also included in the definition of immediate family are the employee’s:
The definition of “spouse” includes husband or wife (opposite or same sex), ex-spouse or de facto partner.
In other words, an employee’s ex-wife’s grandmother is considered immediate family but their uncle or aunt is not.
The days of personal/carer’s leave that an employee is entitled depends on two things – if they are permanent or casual, and if they’re covered by a Modern Award.
The NES indicates that permanent employees are entitled to 10 days of paid personal leave per year.
Casual employees are not entitled to any amount of paid personal leave per year.
If an employee falls under a Modern Award, their personal leave entitlements may be different. Consult the Award’s stipulations for further information.
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An employee can use personal leave for when they’re sick or injured. Personal leave must only be used when that sickness or injury prevents them from carrying out their normal work duties.
Personal leave is not intended to be used for a holiday or because the employee simply wants a day off work.
An employer has the right to request evidence of an employee’s illness or injury for any occasion the employee has requested personal leave.
Yes. Personal carer’s leave does accumulate throughout the year. This indicates that an employee is not automatically credited with 10 days when they start working.
At the end of each year, any outstanding balance of days not taken, will carry over into the next year.
In the event that the employee takes more days off then they have accrued, they will only be paid for the days accumulated. The rest of the absence would usually be unpaid leave.
Personal/Carer’s leave is intended to be used when an employee is sick or injured, or to care for sick or injured family member.
Annual leave is intended to be used by employees to take a holiday or time off work.
Permanent employees will generally receive 10 days of personal leave and 4 weeks of annual leave per year.
Casual employees are not entitled to paid personal/carer’s or annual leave.
Permanent employees are entitled to accrue 10 days of paid personal leave per year.
If an employee falls sick and has run out of sick leave, they can still request to take a sick day off work. An employer is not obligated to pay the employee in this circumstance. This is called unpaid leave.
Casual employees aren’t entitled to paid sick leave but can still request to take unpaid days off.
In theory, an employee can be on unpaid sick leave indefinitely. If an employee has to take leave from work due to a serious or long illness, employers must allow the employee leave from work.
The best option to cover for an employee on a long-term absence is to make a temporary hire or re-jig your current staff roster to make up for the absence.
However, the Fair Work Act has provisions for dismissing an employee in some circumstances when they have been away from work for longer than three consecutive months, or for more than three months in a twelve month period.
For any sick leave application, an employer can request a medical certificate. Employers can request a medical certificate, or other evidence, to prove that the employee needs to take the day off.
If an employee wishes to take the day off to care for a relative, an employer can also request evidence of the family member’s ailment.
Evidence proving a sickness or injury can include a medical certificate, doctor’s letter, or statutory declaration.
An employer may refuse carer’s leave on reasonable grounds.
For example, if an employee does not present the requested evidence, an employer can refuse the request for carer’s leave.
If an employee has run out of paid personal/carer’s leave or does not have access to paid personal/carer’s leave, the employee may access an additional two days of unpaid leave per occasion. After this time period an employer may refuse any further absences. However, an employer may also allow the employee further unpaid leave.
Yes, an employer can ask an employee for a medical certificate. The Fair Work Act provides that an employer can request evidence to satisfy a reasonable person that the leave was taken for an illness or injury. This is generally taken to be a medical certificate but could also include a statutory declaration.
If an employer would prefer for a certain type of evidence, it is recommended that this expectation is set with employees in the form of an absenteeism policy.
When requested to do so, an employee has to present a medical certificate within a reasonable timeframe. Guidance around what you would generally consider reasonable could also be set out in your policies.
On the face of it, an employer has to accept a doctor’s certificate as legitimate. The same will generally apply if a medical certificate is not provided by a GP but is provided by another suitable source such as a certificate provided by a pharmacist for minor ailments.
An employer can reject a medical certificate from a medical practitioner only in exceptional circumstances. For instance, if the employer believes that the medical certificate is fraudulent.
There may also be occasions where the employer cannot fully rely on the medical certificate or require further information. Such as if the medical certificate doesn’t sufficiently spell out the risks associated with bringing the employee back to work.
Compassionate leave does not come out of an employee’s personal or annual leave. If an employee is already on personal leave, they can take compassionate leave if they need it instead of personal leave.
Compassionate leave is paid for full- and part-time employees, and unpaid for casuals.
Permanent employees are paid at their base rate of pay for the hours they would have worked on the day they take the leave.
Paid compassionate leave generally does not include other entitlements such as loading, bonuses or penalty rates.
It also cannot be paid out when an employee leaves a business.
Employees are allowed two days of compassionate leave whenever an immediate family or household member dies or is suffering from a life-threatening illness or injury.
Compassionate leave can be taken as two-day period, or as two separate days.
An employee can take compassionate leave any time they need it.
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