Answers to questions MyHR receives from its members about employee's entitlement to sick and carer's leave, taking sick leave, and employers' rights and obligations.
Questions covered:
- How much sick and carer's leave does an employee get each year?
- How does sick leave accumulate?
- How much sick leave can an employee take?
- What happens if a person is sick and has no sick leave?
- How much should I pay an employee on sick leave?
- What happens when a person works a few hours and then goes home sick?
- When should an employee notify the employer they are sick?
- Can I ask an employee who says they are sick to come to work?
- Can I ask a sick employee to work from home?
- Are employees who test positive for COVID-19 eligible for sick leave?
- Can an employee take sick leave for stress?
- Can I ask an employee to provide proof they are sick?
- What if an employee doesn’t or won’t provide evidence of sickness?
- Can I make an employee have a medical examination?
- Do I have to give employees time off to see a doctor?
- What should I do if I suspect someone is abusing sick leave provisions?
- What happens to unused sick leave?
- Do I need to have a sickness or sick leave policy?
- What happens if an employee gets sick while on annual leave?
- Is offering employees unlimited sick leave a good idea?
How much sick leave does an employee get each year?
Under the National Employment Standards (NES), all employees except casuals (and independent contractors) are entitled to paid sick and carer's leave based on their ordinary hours of work:
- Full-time employees are entitled to 10 days each year.
- Part-time employees are pro-rata (calculated as 1/26 of their ordinary hours of work in a year).
Sick leave starts accumulating from the first day of work and the balance at the end of each year carries over to the next year.
Casual employees are paid a casual loading instead of accumulating paid leave entitlements.
A registered agreement, award, or employment contract can set out different entitlements to paid sick leave, but can’t provide less than the NES minimums.
Learn more about employee sick leave entitlements.
How does sick leave accumulate?
An employee’s entitlement to paid sick and carer’s leave accumulates progressively during a year of employment, based on their ordinary hours of work.
The entitlement to 10 days of sick leave can be calculated as 1/26th of the employee’s ordinary hours of work in a year.
The maximum a person can accrue in a year is 10 days, but unused sick leave accumulates from year to year.
How much sick leave can an employee take?
An employee can take as much paid sick or carer's leave as they have accumulated. There is no maximum or minimum amount of sick leave that workers can take at any one time, so long as they meet any notice and evidence requirements.
Sick leave is a protected entitlement (i.e. an employee is protected from action such as dismissal being taken against them for taking sick leave), however, an employee is not protected if they are absent for 3 consecutive months or more than 3 months across a 12 month period, and has used all of their paid sick leave.
While this is the case, these matters are often quite complex and employers should be mindful that other dismissal protections, such as unfair dismissal or anti-discrimination law, could protect employees.
What happens if a person is sick and has no sick leave?
If an employee has not qualified for sick and carer's leave or has none left, the employer and employee can agree to:
- use annual leave (if available), or
- take unpaid leave.
From time to time employers may provide sick leave in advance of entitlement, but be aware that if the employee leaves the business before their entitlement rolls over, it could be difficult to recoup.
How much should I pay an employee on sick leave?
Employees who take paid sick or carer’s leave are paid their base pay rate for each hour or part hour they would normally work. This does not include overtime or other entitlements, e.g. bonuses, allowances, loadings, penalty rates.
What happens when a person works a few hours and then goes home sick?
Sick and carer’s leave is deducted and paid for each hour (or part of an hour) of leave an employee takes, so someone who works for 2 hours and then goes home would have 2 hours deducted from their entitlement and be paid 2 hours' sick leave.
When should an employee notify the employer they are sick?
An employee should notify the organisation as soon as they can (either before they are due to start work or as soon as possible afterwards) if they are sick, injured, or need time off to care for an immediate family or household member.
A phone call is the best method of notification, but a text, email, or another form of electronic message may be acceptable, depending on the rules and reporting lines your business has in place.
Can I ask an employee who says they are sick to come to work?
No, but you can ask them to provide evidence of illness or injury.
Your first consideration should be to look after people. Making someone come to work when they are sick is not good for many reasons, i.e. the person, the employment relationship, the business and its customers and clients. There is also the potential for employees to raise claims for the business failing to ensure their health and safety if sick workers are required and/or permitted to come to work.
Can I ask a sick employee to work from home?
No. The golden rule is that employers should never require (or knowingly allow) anyone to work while they are sick, regardless of whether or not working remotely is a possibility.
Employees can choose to work from home if they feel well enough or are improving, and we encourage employers to support them by providing options for working reduced or intermittent hours.
Especially in the case of COVID-19, employees may have a few days being sick (and not working) and then return to work remotely as they have recovered but still can't come into work under public health guidelines. In this scenario, only the days they are unable to work are counted as sick leave.
We also advocate easing back into work, particularly if the employee has been hit hard by illness or injury, or they have asked for this. This might look like working half day (paid per usual) and half day sick leave.
The easing back period will be subjective; it could be a couple of days, or might be a week or a month. In the case of COVID-19 infection, this approach may help the person avoid the effects of long COVID.
Are employees who test positive for COVID-19 eligible for sick leave?
Yes. They are still sick, so you should treat it as normal sick leave.
Find out more about leave entitlements during COVID at Fairwork.gov.au.
Can you take sick leave for stress?
Yes. Stress leave isn't a separate form of leave, but employees are entitled to take paid sick and carer's leave for stress-related illnesses.
Under Work, Health and Safety laws, employers also have a duty to manage workplace hazards and risks, including psychosocial hazards that create stress. The effects of stress aren't always obvious, so it’s important to maintain open, honest communication with employees.
We recommend always doing what you can to support stressed employees and to ensure your team members are healthy and productive.
Learn more about managing psychosocial hazards at Safe Work Australia.
Can I ask an employee to provide proof they are sick?
You can request evidence that an employee is sick, injured, or needed to provide care or support to an immediate family or household member once the person has been off work for 1 day or less.
There are no strict rules on what constitutes evidence, but it must convince a reasonable person that the employee was genuinely entitled to sick leave. A medical certificate from a doctor or statutory declaration (if for example, the person couldn’t get an appointment to see a doctor) are the most common forms of proof.
A modern award or registered agreement can specify when an employee has to give evidence and the type of evidence (this must always be reasonable in the circumstances).
In all cases where an employer requires proof, you must inform the employee as soon as possible.
What if an employee doesn’t or won’t provide evidence of sickness?
If an employee won’t provide evidence of sickness or injury when asked, they may not not be entitled to payment for their sick or carer’s leave. Additionally, you can take disciplinary action against the employee for failing to comply with a company policy or reasonable management direction.
If the evidence they provide is not what a 'reasonable person' would be satisfied with, you could ask for consent from the employee to contact their doctor for further information or you could instruct them to attend an independent medical assessment.
Learn more about managing employee issues.
Can I make an employee have a medical examination?
Generally, an employer can direct an employee to attend a medical examination to determine whether they are fit to perform the inherent requirements of their role, provided that the direction is reasonable. This includes:
- Whether there’s a genuine need, i.e. due to a long-term absence or where there is a concern that the employee may not be able to perform the inherent requirements of their role.
- Whether the employee already provided adequate medical evidence.
- Whether it is a high risk workplace or industry.
- Whether there are concerns that the employee’s injury or illness could impact others in the workplace.
Do I have to give employees time off to see a doctor?
Generally, employees can only use sick leave for pre-arranged medical consultations or elective surgeries if they are unable to work because of personal sickness or injury.
If they are fit for work, you can explore other options with the employee, e.g. using another type of leave, making up the time later, or scheduling appointments for a time outside work hours.
What should I do if I suspect someone is abusing sick leave provisions?
Employers have the right to request reasonable evidence of illness or injury and if the employee doesn't provide it when asked, they may not be entitled to be paid sick leave.
Employees using paid sick leave the whole time can't be dismissed by their employer because of their absence, regardless of how long they're on leave.
If the person has been using a lot of sick (or other) leave, there might be wider issues involved, e.g. health issues, low motivation, harassment or bullying, or problems outside work. This is where open, honest communication and supporting the person can help. If you have an Employee Assistance Programme, recommending the person access their services could also be beneficial.
Find out more about managing employees who use a lot of sick leave.
What happens to unused sick leave?
At the end of any 12-month period, unused sick and carer's leave can be carried over and added to the person's entitlement for the year.
At the end of the employment relationship, most employees aren’t entitled to any form of payment for any sick leave they haven't used.
However, some awards and registered agreements do allow sick and carer's leave to be cashed out in limited circumstances, i.e. the worker has a balance of at least 15 days of untaken paid sick leave after cashing out, they are paid at least the full amount they would have been paid if they took the leave, and a separate agreement is made in writing..
Do I need to have a sickness or sick leave policy?
No. Sick leave entitlements and payments are defined by law, so there’s no need to outline these in company policy.
However, we do encourage businesses to have policies in place clearly outlining notification requirements, whether or not a medical certificate is needed, and any return to work procedures.
What happens if an employee gets sick while on annual leave?
If an employee (or their spouse, partner or dependant) gets sick or injured before or during annual leave, they can change the days they are sick to sick leave days rather than annual holidays.
The employer can ask the employee to prove the illness or injury before allowing them to change annual leave to sick leave.
Is offering employees unlimited sick leave a good idea?
Some employers offer sick leave beyond the legal minimum of 10 days, whether this is uncapped or managed at the company’s discretion. Proponents say it improves staff wellbeing and morale, which boosts employee retention and recruitment. There is, however, the potential for abuse and any additional administration required.
Whether or not uncapped leave will work for your business will depend on your industry, structure, and culture.
