What’s the difference between sick leave and personal/carer’s leave? Well, personal/carer’s leave is a National Employment Standard entitlement which includes both sick leave (where an employee is not fit for work because of a personal illness or injury) and carer’s leave (to provide care or support to a member of an employee’s immediate family or household because of a personal illness/injury or an unexpected emergency). Now whilst the term “immediate family” is broadly defined in the Fair Work Act, there is no definition of who or what is part of a person’s household. For example, there is some debate about whether family pets are legally part of a person’s household.
Full time employees have a basic entitlement of 10 days paid personal/carer’s leave each year (which accrues progressively through the year). When the paid entitlement is exhausted, unpaid carer’s leave of 2 days per occasion can be taken. Part time employees receive pro rata entitlements. Casuals receive the unpaid entitlement per occasion. These are minimum entitlements so industrial awards, enterprise agreements, contracts or policies can provide for a greater entitlement. Personal/carer’s leave accumulates from year to year but is not paid out on termination of employment.
What can be done if you think an employee is abusing the entitlement? Firstly employees are required to give notice of taking leave as soon as practicable and must advise how long they will or expect to be away from work. Employees who fail to do this can be counselled and potentially disciplined. Secondly, an employer can require an employee to provide reasonable evidence to support their leave claim. This commonly takes the form of a medical certificate but a statutory declaration may also be satisfactory, particularly if carer’s leave is involved.
Commonly, medical certificates merely state that a person is/was suffering from a “condition”. An employer may be able to refuse pay for the leave until some further detail is provided, particularly if an employee has a history of taking leave. Where the claim is for carer’s leave, further details of the care or support given and the nature of the illness, injury or emergency affecting the family or household member can be sought. However, an employer’s requests for evidence must be reasonable because an employee could complain to the Fair Work Ombudsman or potentially even take legal action if an employer unreasonably refuses payment.
A couple of other points. Firstly, care should be exercised where an employee has used up their paid entitlement and continues to be absent on unpaid leave. Secondly, there is debate about whether absences for elective medical procedures are strictly personal leave. Thirdly, if a personal leave day falls on a public holiday, the day should be treated as a public holiday rather than a personal leave day.
As always, please contact us if you would like further information or help.