Navigating personal and carer's leave
As a business owner, you understand that a healthy and dedicated workforce is key to your success. And sometimes, life happens. Employees occasionally need time off due to their own health or to care for loved ones.
The National Employment Standards (NES) provide clear guidelines for personal and carer's leave (also known as sick leave) to support employees during these situations, helping them focus on recovery or caregiving without the added stress of lost income.
What is personal and carer's leave?
Personal leave, or sick leave, entitles employees to paid time off when they are unable to work due to their own illness or injury. This includes physical or mental health injuries or illnesses, and pregnancy-related illnesses. Employees have the right to use their personal leave to attend medical appointments, manage ongoing health needs or recover from unexpected health events.
Carer's leave provides employees with time off to care for immediate family members or household members who are unwell, injured or experiencing an unexpected emergency. This leave recognises the important role employees play in providing support to their loved ones during difficult times.
Full-time and part-time employees are entitled to paid personal/carer's leave, with the amount they can access based on their work hours and accrued over time. Casual employees, while not entitled to accrue paid personal/carer's leave, can take unpaid carer's leave in specific situations to provide necessary support to loved ones.
Personal and carer's leave entitlements
National Employment Standards (NES) establish guidelines for how much personal and carer's leave employees are entitled to and how this leave accumulates.
Full-time employees are entitled to 10 days of paid personal and carer's leave annually. Part-time employees accrue leave on a pro-rata basis, with their entitlement calculated in proportion to their regular working hours. Importantly, unused sick and carer's leave carries over from year to year, allowing employees to build up a safety net for future health needs or caring responsibilities.
Calculating part-time leave entitlements is straightforward. It's often calculated as 1/26th of a full-time employee's leave for each year of service. Contact our 24/7 Employer Assist Line on 1300 144 002 if you're looking for guidance.
While the NES sets the minimum standards for sick and carer's leave, some modern awards or enterprise agreements may have additional regulations or provide greater entitlements. Ensure you familiarise yourself with any specific rules that apply to your business.
When employers can request personal and carer's leave evidence
Australian workplace laws aim to balance employee rights with the need for businesses to prevent misuse of leave entitlements. Employers have the right to request reasonable evidence to ensure sick and carer's leave is used genuinely.
Employers may ask for evidence to support an employee's need for sick or carer's leave. This helps verify that the employee was either unable to work due to their own illness or injury or needed to provide care to an immediate family or household member.
Examples of acceptable evidence include:
- Medical certificates provided by a registered health practitioner that outlines the reason an employee is unfit for work.
- Statutory declarations; a formal legal statement affirming that an employee was either unwell or providing essential care.
The type of evidence an employer can request must be reasonable in the circumstances. While there are no strict rules, the evidence should be enough to convince a reasonable person that the sick or carer's leave was legitimate. Consider factors such as the duration of the leave and the nature of the illness or emergency.
Employees are obligated to notify their employer as soon as practically possible if they need to take sick or carer's leave. They should also indicate the expected duration of their absence.
Understanding carer's leave situations
Carer's leave is designed to support employees caring for their immediate family or household members during times of illness or unexpected emergencies. Australian employment law defines who falls under the category of "immediate family" for the purposes of carer's leave. This includes:
- spouse and de facto partner,
- former use and de facto partner,
- children (including adopted, step or foster children)
- parents, grandparents, grandchildren, siblings,
- the same relatives listed above of an employee's spouse or de facto partner, and
- step-relations and adoptive relations.
Carer's leave isn't limited to illness or injury. Understanding what constitutes an 'unexpected emergency' is important. These are sudden or unforeseen events that require immediate attention, such as picking up a sick child from school or addressing a household crisis.
When assessing a carer's leave request due to an emergency, consider how much advance notice the employee had, the possibility of alternative arrangements like working from home or rescheduling, and the age and independence level of the person needing care.
Carer's leave requests often involve sensitive circumstances, requiring employers to assess each situation individually. When evaluating a request, carefully consider the specific details of the illness, injury or emergency, along with the anticipated duration of the employee's absence. Assess the potential disruption to the business while maintaining open and empathetic communication with the employee throughout the process.
Pay during personal or carer's leave
Australian law aims to ensure employees receive fair compensation during periods of sick or carer's leave. Understanding the methods for calculating these payments is important for accurate payroll management. The foundation of sick and carer's leave pay is an employee's base pay rate. This represents their standard hourly wage for their ordinary working hours.
Several factors are not included when calculating an employee's base pay rate for leave purposes. These include overtime hours, bonuses, allowances, penalty rates, and any incentive-based payments.
Compassionate leave, which employees may access due to the passing of an immediate family member or a severe household emergency, is also generally paid at the employee's base pay rate.
It's important to remember that employees are only compensated for sick and carer's leave based on the hours they would typically have worked during their absence. For a full workday absence, deduct the number of ordinary hours they would normally work, and for a partial day absence (e.g., 4 hours), deduct the corresponding number of hours from their leave balance.
Your employee's modern award, registered agreement or employment contract might specify more generous benefits than the legal minimum. Always review these documents to ensure you comply with all applicable rules.
When leave runs out – options and obligations
Even when paid leave is exhausted, Australian employment law safeguards employees by providing rights to unpaid carer's leave. All employees, including casuals, can access 2 days of unpaid carer's leave each time an immediate family or household member requires care due to illness, injury or an unexpected emergency. Note that full-time and part-time employees can only use unpaid carer's leave if they have no remaining paid personal/carer's leave.
When employees face extended absences due to prolonged illness or injury, it's important to be aware of rights and protections in place. While there is a limit to absence protection based on paid leave use (a maximum of 3 months consecutively or cumulatively within a year), it's essential to remember that this doesn't mean an employer can automatically dismiss someone.
In some circumstances, it may be appropriate to explore potential use of other leave types. Consider whether the employee has accrued annual leave or long service leave that could be utilised after exhausting personal/carer's leave.
When 'cashing out' is permitted
'Cashing Out' refers to when employees get paid instead of taking accrued personal and carer's leave. It's important to note that this option is typically restricted by Australian employment regulations. Most awards prohibit cashing out sick and carer's leave. An exception exists if an employee is covered by a registered agreement explicitly allowing this practice.
Even if an award or agreement permits cashing out leave, there are strict requirements. A written agreement between the employer and employee must be created for each specific instance of cashing out. Employees must also maintain a minimum balance of 15 days of untaken paid sick and carer's leave after cashing out any portion, and the employee must receive full payment equivalent to what they would have earned had they actually taken the leave.
Is an employee limited to using personal leave only for their own illness?
No, personal/carer's leave covers both an employee's own illness and the need to care for immediate family members who are ill or experiencing an emergency.
How can employers manage suspected misuse of personal/sick leave?
Employers can request evidence (like a medical certificate), have clear workplace leave policies and foster open communication to encourage legitimate leave use.
Can employers use carer's leave to provide extended paternity leave?
No, carer's leave is designed for short-term illness or emergencies. Refer employees seeking parental leave to information about government-funded Parental Leave Pay and any additional workplace entitlements.
Can employers offer annual leave instead of unpaid carer's leave?
Yes, employers can choose to be flexible. Ensure consistency across your workforce and check your existing policies and agreements to avoid potential discrimination claims.
Can employers always demand proof for a single day of absence?
While an employer is legally entitled to request evidence, consider being reasonable for short-term absences. Clearly defined workplace policies regarding evidence requirements can be helpful.
What if an employee falls ill during their annual leave?
Employees can usually apply to switch those days to personal/carer's leave if they provide supporting evidence, such as a medical certificate.
What happens if an employee's sick/carer's leave entitlement runs out?
Employers should refer employees to options like unpaid leave, annual leave (if possible), or potential support through government programs if applicable.
Can an employee take personal/carer's leave in partial days?
Yes, personal/carer's leave can be taken in part-day or even hourly increments based on the employee's needs.
Are there notice periods for taking personal/carer's leave?
While sudden illnesses or emergencies make advance notice impossible, employees are expected to inform employers as soon as practically possible and indicate the expected duration of absence.
What specific information can employers include in evidence requests?
The employer can ask for details surrounding the nature of the illness/injury or emergency care situation. These details should provide enough information for the employer to assess the leave request while still respecting the employee's privacy.