In 2020, the Fair Work Commission (FWC) inserted additional COVID provisions into many modern awards. These provisions contained in Schedule X, provided an entitlement to unpaid pandemic leave, as well as the ability to take annual leave at half pay.

Schedule X was due to expire on 31 December 2021. However, many affected parties applied to the FWC for an extension of the unpaid pandemic leave provisions in their awards. The FWC ultimately agreed to extend the unpaid pandemic leave provisions in those awards, until 30 June 2022. However, the other COVID provision, namely the ability to take annual leave at half pay, was not extended and has now expired.

What are the requirements for taking unpaid pandemic leave?

An employee is entitled to 2 weeks of unpaid pandemic leave (or a longer period if the employer and employee agree) if they are required by a government, medical authority or their doctor to self-isolate due to COVID-19, or are otherwise prevented from working due to measures taken by government or medical authorities in response to the COVID-19 pandemic.

The taking of such leave does not affect any other paid or unpaid leave entitlement of the employee, and counts as service for the purposes of entitlements under the award and the National Employment Standard. An employee does not need to exhaust their other leave entitlements before accessing unpaid pandemic leave.

An employer cannot dismiss or take adverse action against an employee for accessing unpaid pandemic leave.

What notice requirements need to be met?

In seeking to take unpaid pandemic leave, an employee must notify their employer of their intention, including the reason for taking the leave, as soon as practicable. This may even occur after the leave has started where circumstances require.

If required, the employee must provide the employer with sufficient evidence to support the reason for taking such leave.

The leave must commence before 30 June 2022 but may end after that date.

Does the COVID provision apply to you?

You should check if the modern awards that apply in your workplace still contain the unpaid pandemic leave provisions. You can access the list at coronavirus.fairwork.gov.au.

By Kelly Godfrey