Trying to keep up with all the regulations and directives about Covid-19 is a real struggle for employers.  One of the most common queries we are getting is how to treat absences when employees are away for Covid-related reasons.  We have put together some relevant information as well as a brief explainer video to help you. If you have any questions, please don’t hesitate to contact us for a chat – we are all working through this together!

WATCH OUR 10 MINUTE EXPLAINER VIDEO HERE

 

Leave Entitlements for Full-time and Part-time Employees (Current as at 11 January 2022)

Positive Test Result

An employee confirmed as having COVID-19 is entitled to Personal Leave and is required to follow any public health directives or instructions to isolate.

  • Personal leave would be payable from the date of positive test result until end of isolation period or fit to return to work (whichever is the later)
  • Reasonable medical evidence can be requested by the employer as per normal personal/carer’s leave guidelines/policies.

Close Contact: Required by public health order

An employee usually isn’t entitled to be paid for time spent getting a COVID-19 test if it is to comply with a public health order unless they apply for paid leave.

  • If test results came back positive, personal leave would be payable from the date of positive test result until end of isolation period or fit to return to work (whichever is the later).
  • If the employee became unwell during the period (even if not due to Covid 19 positive result), personal leave would be payable for the period of illness.
  • If tests results come back negative, there is no requirement to pay leave (however may be done at the employer’s discretion).
  • Employees covered by certain Awards may be entitled to unpaid Pandemic Leave.
  • Carer’s leave would apply if the employee was required to give care to a family member/member of their immediate household who is unwell.
  • Reasonable medical evidence can be requested by the employer as per normal personal/carer’s leave guidelines/policies.

Testing Required by Employer

An employer may in certain circumstances be required to direct an employee to get tested to comply with obligations under a work health and safety law. A term of an enterprise agreement, other registered agreement or employment contract may also permit an employer to require an employee to get tested.

Where there is no requirement under a public health order, work health and safety law, registered agreement or employment contract, an employer may still be able to direct an employee to get tested in some circumstances.

Requirements, or directions, need to be lawful and reasonable. If an employee is required to get tested for COVID-19 by their employer (but it isn’t required under a public health order), they’re entitled to get tested on work time and be paid for the time as if they had worked.

 

  • Time spent in testing would be paid as normal hours worked pay (no deduction from leave entitlements).
  • Time spent waiting on results would be paid as normal hours worked. NOTE: we recommend that your policy stipulates a requirement to share the results immediately as they are received by the employee.
  • If test results are positive, personal leave is payable until completion of isolation period or the employee is fit to return to work (whichever is the later).
  • If the result is negative, the employee can return to work unless they are unwell with other symptoms in which case normal Personal Leave guidelines/policies apply.

On Leave due to Symptoms

An employee usually isn’t entitled to be paid for time spent getting a COVID-19 test if it is at their own discretion, unless they take paid leave.

 

  • If symptoms are such that the employee is ill and unable to perform work – personal leave is payable.
  • The employee may return to work when they are better; or if a Covid test is conducted, they need to wait for the return of the results.
  • If the result is negative they can return to work; if the result is positive, personal leave is payable until completion of isolation period or the employee is fit to return to work (whichever is the later).
  • Normal requirements of reasonable evidence for personal leave apply (i.e. certificate) and personal leave is not payable if these are not provided.

Testing at Own Discretion – No Symptoms

An employee usually isn’t entitled to be paid for time spent getting a COVID-19 test if it at their own discretion, unless they take paid leave. NOTE: it is unlikely that the health system will process a test for someone who does not exhibit symptoms and is not a close contact.

 

  • If the test result returns negative, leave would be unpaid leave unless otherwise at management’s discretion
  • If the test result returns positive, personal leave would be payable until completion of isolation period or the employee is fit to return to work (whichever is the later).
  • Normal requirements of reasonable evidence for personal leave apply (i.e. certificate) and personal leave is not payable if these are not provided.

Carer’s Leave

Where it is not the employee impacted (either displaying symptoms or required to quarantine), but rather a member of their household or family (as defined by the NES), the following applies:

 

    • If the family/household member is a child (school aged or younger requiring supervision/care), the employee is entitled to Paid Carer’s Leave.
    • If the family/household member is an adult and the adult requires care (i.e. they are actually unwell and require care), the employee is entitled to Paid Carer’s Leave.
    • If the family/household member is an adult and does not require care (they are not unwell), there is no entitlement to paid leave.

      *Please note: paid leave is only an entitlement as long as the employee has paid leave accrued.

 

Quarantining/Isolation

Positive result

A diagnosed person may leave isolation, and is deemed to be a cleared case of COVID-19, at the earlier of:

    • if the positive result for the diagnosed person is found to be a historic infection and the person is no longer considered infectious, the requirement to isolate ends, provided the diagnosed person does not have symptoms consistent with COVID-19; or
    • 7 days after undertaking the test, and 48 hours has passed since the person has had fever and acute respiratory symptoms, and a direction to isolate has not been given to the person under section 362H of the Public Health Act 2005; or10 days after undertaking the test, where on Day 7 of isolation the diagnosed person has fever and acute respiratory symptoms; or

Close Contact

A person who is informed or becomes aware they are a close contact of a diagnosed person must:

 

      • if the person has symptoms consistent with COVID-19– as soon as practicable undertake a COVID-19 test and quarantine for 7 days from the date the diagnosed person undertook the test which returned a positive COVID-19 test result, as advised to the close contact by the diagnosed person; or
      • if the person does not have symptoms consistent with COVID-19 –immediately quarantine for 7 days from the date the diagnosed person undertook the test which returned a positive COVID-19 test result, as advised to the close contact by the diagnosed person; and
      • where the close contact is quarantining with the diagnosed person as a member of their household, the quarantine period is for the same period as the isolation period of the diagnosed person; and
      • where the close contact develops symptoms consistent with COVID-19 at any time during the quarantine period – undertake a COVID-19 test as soon as reasonably practicable after the symptoms start.

        Note: a close contact who does not have symptoms consistent with COVID-19 is not required to undertake a Rapid Antigen Test unless they develop symptoms, apart from the Day 6 test required for their release from quarantine.

        A close contact quarantining may leave quarantine at the end of 7 days from the date the diagnosed person was tested if the close contact:

      • does not have symptoms consistent with COVID-19 and,
      • on Day 6, has undertaken a Rapid Antigen Test that has produced a negative test result; or
      • has had symptoms consistent with COVID-19 during the period of quarantine but no longer has symptoms and all COVID-19 tests, including a Rapid Antigen Test on Day 6 have produced a negative test result.

         

        Close Contact

        Close contact means a person who is a household member or a household-like contact of a diagnosed person. Household-like contact means, except in exceptional circumstances determined by the Chief Health Officer, a person who has spent more than four hours with the diagnosed person in a house or other place of accommodation, such as a residential aged care facility, disability accommodation, hospital or similar setting, unless the person has been in a separate part of the house, place of accommodation, that has a separate point of entry, no shared common areas, where the person does not share that area for more than four hours, and the person has no contact or interaction with the diagnosed person for more than four hours.

Critically Essential Workers

An employer in a critical industry may identify and create a Critical Worker List of the critically essential roles that:

  • require a person with particular skills; and
  • must be performed in person at the workplace; and
  • must continue to be performed to:
  • i.prevent an immediate risk of death or serious injury to a person; or
  • prevent serious harm (social, economic or physical) in the community.

    An employer who requires a close contact to attend the workplace to perform a critically essential role must, as soon as practicable and no later than three days after the close contact first attends the workplace:

  • submit the Critical Worker List to the nominated Queensland Government email address: [email protected]; and
  • keep a record of the Critical Worker List to be produced if requested by an emergency officer (public health).

    A close contact who is required to perform a critically essential role identified on a Critical Worker List may leave the quarantine premises to perform that critically essential role under paragraph 16 only if the close contact:

  • has no symptoms consistent with COVID-19; and
  • is fully vaccinated.

    When leaving the quarantine premises to perform the critically essential role, the close contact must:

  • use a surgical mask when indoors, and outdoors when unable to physically distance from other people; and
  • travel to and from the workplace by private transport or in accordance with paragraph 18, by the most direct route practicable and without stopping, except for refuelling (contactlessly as far as possible); and
  • undertake regular symptom surveillance; and
  • Note: if the close contact develops symptoms consistent with COVID-19, the close contact is no longer permitted to leave the quarantine premises to attend the workplace, must be tested for COVID-19 as soon as practicable and return to the quarantine premises.
  • undertake regular hand hygiene; and
  • undertake a Rapid Antigen Test on Day 6 of the quarantine period; and
  • to the extent reasonably practicable, practise physical distancing including remaining at least 1.5 metres from other people until the end of the quarantine period for the close contact; and
  • comply with any industry or employer requirements for workers in critically essential roles.

    Critically essential role means a role identified as satisfying the requirements, by an employer in a critical industry.

    Critical industry means:

  • Health;
  • Emergency services, including police, the Queensland State Emergency Service, maritime rescue, the Coast Guard and the Rural Fire Service
  • Power and utilities;
  • Stores in remote locations or communities;
  • Essential retail (including supermarkets);
  • Freight and Logistics, including freight transported by air, rail, road or sea;
  • Public Transport;
  • Education – secondary, primary and kindergarten school teachers;
  • Agriculture and Fisheries production;
  • Resources;
  • Major manufacturing, distribution and critical supply chains (food, pharmaceuticals and petrol).

    Critical Worker List means the list of critically essential roles identified as satisfying the requirements, by an employer in a critical industry.

  • Evidence of Test Results

    Employers in QLD are able to ask to sight COVID-19 testing results for the purpose of confirming leave arrangements. They are also entitled to request reasonable medical evidence in line with the legislation from an employee wishing to claim paid personal leave entitlements.

    For employers regulated by the Privacy Act 1988, they can only collect (record or keep a copy of) the test results if:

  • the employee gives informed consent (involving no threat of disciplinary action or dismissal) and the collection is reasonably necessary for the business’s functions or activities, or
  • collection is authorised by law (for example, a public health order requires the information to be collected or where collection is necessary for the employer to meet their obligations under workplace health and safety laws).
  •  

    References:

    https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/pay-leave-and-stand-downs/quarantine-self-isolation#payment-when-getting-a-test

    https://www.health.qld.gov.au/system-governance/legislation/cho-public-health-directions-under-expanded-public-health-act-powers/isolation-for-diagnosed-cases-and-management-of-close-contacts

    https://www.servicesaustralia.gov.au/pandemic-leave-disaster-payment-queensland (for Pandemic Leave Disaster Payment)

    https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/public-health-directions/confirmed-cases-and-close-contacts/close-contacts (for close contact quarantine and testing requirements)

    https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/current-status/public-health-directions/confirmed-cases-and-close-contacts/critically-essential-worker-requirements (for information about critically essential worker guidelines)

    https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/stay-informed/i-have-covid/what-to-do-if-i-have-covid (for steps following a positive Covid-19 test)

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    https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/changes-to-workplace-laws-during-coronavirus/unpaid-pandemic-leave-annual-leave-changes-in-awards#awards-with-unpaid-pandemic-leave (for Awards with Pandemic Leave)

    Disclaimer

    This is not professional or legal advice and specific advice should be sought from your advisor before making decisions relating to employee entitlements. A company’s Awards, Enterprise Agreements, Policies and Contracts of Employment may also impact on entitlements.

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