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Helping businesses through COVID-19: Part 1 – Can I ask employees to take leave?

Emily Shoemark

06 Apr 2020

Topics

  • COVID-19
  • Employment Law
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In this time of uncertainty and everchanging landscape, it is important to stay safe, stay calm and understand your rights and obligations as an employer. In this article – the first in a series about assistance for employers during Covid-19 – Emily Shoemark and Kayla Scott discuss options for employees taking leave during this period.

Can I ask employees to take annual leave?

In most cases, you can only require an employee to use their paid leave at a specific time with their agreement. An employee may be willing to do so at the moment due to potential increased responsibilities at home (for example, due to schools moving to online learning).

Prior to making any decisions, it is important to review the appropriate award or enterprise agreement that covers your business, as well an any individual employment contracts in place, to determine if there are express provisions related to taking annual leave at specified times and if it allows you to direct an employee to take annual leave.

For employees who are not covered by a modern award or enterprise agreement, section 94(5) of the Fair Work Act provides that employees can be required to take annual leave if the requirement is reasonable.

In assessing what may be reasonable, the following factors can be relevant:

  • the needs of both the employee and the business
  • any agreed arrangements with the employee
  • the timing of the direction to take annual leave
  • the period of notice provided to the employee to take annual leave
  • custom and practice of the business.

Clearly, the current circumstances of the COVID-19 pandemic will be a large factor in any decision to ask employees to take leave.

Please note that the Fair Work Commission is in the process of amending some of the awards to insert a schedule to provide additional award flexibility for a temporary period, in light of the pandemic. An example of this is the Clerks (Private Sector) Award, which now allows an employer to direct an employee to take leave in certain circumstances. It is likely that further award changes will be made on 8 April 2020.

Are employees entitled to take personal leave during this time?

An employee can use their personal leave if they are unwell and not fit to work, or if they are required to care for an immediate family member due to illness or emergency.

If an employee is required to self-isolate or care for a family member due to self-isolation or illness, then paid parental leave may be utilised.

It is at the employer’s discretion to consider and discuss with an employee the use of personal leave in other circumstances, such as due to the need to assist with online schooling for children.

Can I ask, or are staff entitled to, utilise other paid leave?

An employer can agree with an employee to vary their employment arrangements with a view of minimise the impacts on the employee and the business of the pandemic, and preserve the employment relationship. This may including using accrued paid leave, including long service leave, to maintain the employee’s wages even if hours of work need to be reduced.

How can we help?

Please contact our Employment Law team for advice on this and other issues that affect your rights and responsibilities as an employer, by email or on 02 6285 8000.

*The content of this article is provided for information purposes only, and we do not accept any liability for reliance upon the information contained in this article.  This information cannot be relied upon as legal advice.