Australia: New COVID-19 paid pandemic leave entitlement for certain workers

The Fair Work Commission (FWC) has determined to provide an entitlement to two weeks’ paid ‘pandemic leave’ to certain aged care workers. The changes have been made in response to the worsening outbreak of COVID-19 across Victoria and the impact that is having on workers in the aged care industry. While these employees would most likely have an entitlement to unpaid pandemic leave created by the FWC in April 2020, the FWC determined that employees in the aged care industry should have access to paid leave as these particular workers are at an elevated risk of contracting the virus. 

The entitlement will be available from an employee's first full pay period on or after 29 July 2020 and until 29 October 2020 to employees across Australia covered by the Aged Care Award 2010, or the Nurses Award 2010 and the Health Professionals and Support Services Award 2020 and who work in the aged care industry. The particular details regarding the entitlements are set out in a new schedule to be inserted into the awards. We have set out the main aspects of the provisions below.

Key provisions explained

What:  Employees will be entitled to take up to two weeks’ paid pandemic leave on each occasion that the employee is prevented from working (including working from home) because:

• the employee is required by their employer, government or medical authorities to self-isolate or quarantine;
• the employee is required on the advice of a medical practitioner to self-isolate or quarantine because they are displaying symptoms of COVID-19 or have come into contact with a person suspected of having contracted COVID-19;
• the employee is in isolation or quarantine while waiting for the results of a COVID-19 test; or
• of measures taken by government or medical authorities in response to the COVID-19 pandemic.

Who:  For the purposes of determining which employees covered by the Nurses Award 2010 and the Health Professionals and Support Services Award 2020 are entitled to the leave, the FWC has defined the ‘aged care industry’ as: “the provision of accommodation and care services for aged persons in a hostel, nursing home, aged care independent living units, aged care serviced apartments, garden settlement, retirement village or any other residential accommodation facility.”

Casuals:  The entitlement is only available to casual employees who are engaged on a regular and systematic basis.

Rate of pay:  Full-time employees are entitled to be paid at their base rate of pay for their ordinary hours of work in the period of the leave, and part-time employees are entitled to be paid the greater of their agreed ordinary hours or the average of their weekly ordinary hours for the previous six weeks. Casual employees engaged on a regular and systematic basis are to be paid based on their average weekly pay in the previous six weeks, or where the employee has been employed for fewer than six weeks, then the duration of their employment.

Notice and evidence:  There are certain notice and evidence requirements that the employee is required to meet, which are similar to those which exist for accessing personal/carer’s leave (including giving notice as soon as practicable, and providing evidence that would satisfy a reasonable of the basis for taking the leave).

Restrictions:  Interestingly, an employee cannot take the paid pandemic leave if:

• the employee can instead take paid personal/carer’s leave (that is if they are sick and have paid sick leave available, the employee must take their sick leave first);
• the employee becomes entitled to workers’ compensation benefits; or
• in certain circumstances, the employee does not undertake the COVID-19 test at the earliest opportunity.

It is likely that if the impact of the pandemic worsens in Australia, we may see paid pandemic leave extended to other workers, as the FWC has foreshadowed that it will continue to monitor developments.

The DLA Piper employment team has extensive experience in assisting employers with award compliance and responding to and staying abreast of changes that have been made to workplace laws in response to COVID-19. Please do not hesitate to reach out to our team who would be more than happy to discuss this topic with you.