By Kelly Godfrey

Employees have minimum entitlements to paid personal/carer’s leave under the Fair Work Act 2009 (Cth) (FW Act).

Other than casual employees, employees are entitled to 10 days’ paid personal/carer’s leave for every year of service they have worked for their employer. This entitlement accrues progressively and accumulates until the employee’s employment ends.

Employees who have not already taken their accrued entitlements may have access to a pool of accrued personal/carer’s leave entitlements they can use during the COVID-19 crisis, if:

• the employee is unfit for work due to personal illness or injury, e.g. due to contracting COVID-19;
• the employee needs to look after a member of the employee’s household or a family member:
• who is ill or injured, e.g. due to contracting COVID-19; or
• because of an unexpected emergency, where the employee has little or no warning, e.g. such as a sudden shutdown of the employee’s child’s school. An ongoing shutdown is not likely to continue to be classified as ‘an unexpected emergency’.

Family and household members include:

• children;
• parents;
• grandparents;
• grandchildren;
• siblings;
• spouses or former spouses; and
• de facto partners or former de facto partners.

There is no limit on the amount of paid personal/carer’s leave an employee may take if they qualify to use their accrued personal/carer’s leave entitlements. As such, employees could exhaust their paid accrued personal/carer’s leave entitlements. There will certainly be an incentive for employees to try to use these entitlements when facing possible reductions in hours or stand-downs.

Entitlements continue to accrue as the employee uses their paid personal/carer’s leave. Superannuation is also payable on the entitlement.

When using their paid personal/carer’s leave entitlements, employees must provide evidence to their employer that would satisfy a reasonable person that the leave is being genuinely taken. Medical certificates and statutory declarations are often provided for this purpose. Employers may consider what evidence they will be prepared to accept during these unprecedented times. While there is a need to be adaptable and reasonable, it is important to ensure the taking of accrued personal/carer’s leave entitlements are being genuinely used.