Sick leave allows employees to take time off from work to recover from an injury or illness. The definition of illness includes stress and pregnancy related illness. Carers leave allows employees to take time off from work to take care of an immediate family or household member who is unwell or to help with a family emergency.
Both sick leave and carers leave come out of the balance of personal leave that an employee accumulates. For the rest of this post, the leave will be collectively referred to as personal leave.
Who is an immediate family member or household member?
A household member is a person who lives in the same home as the employee.
An immediate family member can be the employee’s
- De facto partner
- The immediate family member of the employee’s spouse or de facto partner
Who is entitled to personal leave?
Casual employees are the only employees not entitled to paid sick leave and carers leave.
How much paid personal leave are you entitled to each year?
Full-time employees are entitled to 10 days of paid personal leave each year. Part-time employees receive pro rata personal leave, determined by how many hours they work.
For example, a part time employee who works half the full-time hours is entitled to 5 days of personal leave annually.
Employers may set a different sick leave entitlement for employees in a registered agreement. However, it cannot be less than the minimum set out above.
Does personal leave accumulate?
Personal leave accumulates from the first day of an employee’s work. It continues to accumulate during paid leave, such as annual leave and paid personal leave. It does not accumulate during unpaid leave.
Any personal leave that hasn’t been taken by the end of a year carries over to the next year.
Payment of personal leave
Employees are paid their base rate of pay when taking personal leave. They are not paid for other entitlements such as:
- Overtime they would normally work
- Incentive-based payments
- Penalty rates
Notice for taking personal leave
Employees must let their employers know that they will be (or are) taking personal leave as soon as they can. They should also let their employer know how long they expect to be off work.
Evidence and medical certificates
Employers are entitled to ask for evidence of the employee’s illness or reason for taking personal leave. Employers may ask for evidence even if the period of leave is only one day. Two commonly accepted forms of evidence are medical certificates and statutory declarations.
Your workplace policy or registered agreement should specify when you need to give evidence to your employer and what type of evidence they require. If your workplace doesn’t have a policy, speak to your employer about creating one.
Employers should not attend a medical appointment with their employee unless requested by the employee. Additionally, employers should not contact the employee’s doctor for further information.
Appointments and elective surgery
An employee can have their prearranged medical appointment or elective surgery coved by sick leave only if they are not able to work due to personal injury or illness.
Employees should talk to their employer about whether their prearranged appointment can be covered by personal leave, or another type of leave or entitlement. The employer may ask for evidence of the illness or injury to help them decide.
Unpaid carers leave
All employees including casual employees are entitled to two days of unpaid carers leave each time an immediate family or household member requires care due to an illness, injury or emergency. This leave can be taken in one continuous period or broken up into smaller periods as agreed between the employer and employee.
Full-time and part-time employees can take this unpaid leave only when they have exhausted their accumulated paid personal leave.
Long periods of sick leave
Employees are entitled to use as much of their paid sick leave as they need to recover. When they run out of paid sick leave, they can take unpaid leave if they need it.
An employee can’t be dismissed due to temporary illness or injury if they provide evidence of their illness or injury. Temporary illness is taken as being less than three months within a 12-month period.
In some circumstances, an employer may be able to lawfully terminate an employee who takes more than three months of sick leave. The lawfulness of the termination depends on the circumstances of each situation.
For example, in 2014, the Fair Work Commission upheld two decisions in different cases where long-term employees suffered illnesses and injuries that meant that they would never again be medically fit to perform the duties of their position.
Employers who are considering terminating an employee who has been absent from work for more than three months must follow the normal rules of employment termination.
Depending on the circumstances of the dismissal, an employee may make a claim for:
- Unfair dismissal if the dismissal was harsh, unjust and unreasonable
- Discrimination if the dismissal was due to an employee’s disability
Cashing out personal leave
Cashing out sick leave is where an employee receives a payment instead of taking their paid personal leave.
Registered agreements may allow cashing out personal leave and there are only three awards that allow it. These are:
- Black Coal Award
- Stevedoring Award
- Timber Award
The awards set out the conditions under which cashing out of personal leave is allowed.
Employers that allow cashing out of personal leave under a registered agreement must only pay out the leave if:
- A written agreement is made each time personal leave is cashed out,
- The employee has at least 15 days of personal leave remaining after they have cashed out the rest, and
- The employee is paid at least the amount they would have received if they had taken the leave.