Sick leave is paid time off work when an employee, spouse, partner, dependent child or other dependent is unwell or injured (including stress and pregnancy).
It's winter, there are many illnesses around (including COVID-19), and businesses and workers are under pressure.
At MyHR, we regularly receive queries from our clients about employees taking sick leave (or personal or carer's leave, as it’s also known) and managing absences, so we created this article to explain the details and answer some common questions.
Minimum sick leave entitlements
Under the National Employment Standards (NES), all employees except casuals are entitled to paid sick and carer's leave. A registered agreement, award, or contract can set out different entitlements to paid sick leave, but they can't be less than the NES minimum.
Leave is based on the person’s 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 an employee’s ordinary hours of work in a year).
Sick leave starts accumulating from a worker's first day of work and the balance at the end of each year carries over to the next year.
Sick and carer's leave still accumulates when an employee is on:
- Paid leave, e.g. annual leave and sick and carer's leave.
- Community service leave (including jury duty).
- Long service leave.
Sick and carer's leave doesn’t accumulate when the employee is on any form of unpaid leave, e.g. unpaid annual, parental, etc.
Independent contractors aren’t entitled to sick leave. Nor are casual employees, but they can take unpaid carer’s leave (up to 2 days at a time) if an immediate family member or household member needs care or support due to sickness, injury, or an unexpected emergency.
Notifying the employer
If an employee is sick, injured, or needs time off to care for an immediate family or household member (because of illness, injury, or an unexpected emergency) and they intend to take sick leave, they should notify the business as soon as they can - either before they are due to start work or as soon as possible afterwards.
A phone call is the best method of notification, but an email, text or another form of electronic message may be acceptable, depending on the rules and reporting lines your organisation has in place.
If possible, the person should also specify how long they will be off or expect to be off work.
Proof of sickness
An employer 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 type of proof needs to be given, 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 evidence.
An award or 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. An employee who doesn't give their employer evidence when asked may not be entitled to be paid for their sick or carer’s leave.
Payment
Sick leave is paid at the employee’s base pay rate for each hour or part of an hour of leave they take. The worker is paid for the hours they would normally work during the period they were off work (not including overtime hours).
Base pay rates don't include separate entitlements, e.g. any loadings, allowances, penalty rates, or incentive-based payments.
Find out more about paying sick & carer's leave at Fairwork.gov.au.
Unused sick leave
Most employees aren’t entitled to any form of payment for any unused sick leave but 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.
Frequently asked questions
What if a person is sick and has no sick leave?
If an employee has not qualified for sick 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.
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 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.
Get answers to more frequently asked questions about sick leave.
