Caught COVID during your annual leave? Two HR experts answer all of your questions.

Christmas was cancelled for a lot of Australian families this year as COVID-19 wreaked havoc on festive plans. 

If that was you, firstly, our commiserations. That bloody sucks. 

For most of us the festive season was something we held high hopes for after another year of restrictions and lockdowns and disappointment. Almost all borders (other than Western Australia) had been reopened just in time, and reunions months and years in the making could finally come to fruition. 

Sidenote: Here are some signs to use when talking about COVID. Post continues after video. 

But if you're one of the unlucky ones who missed out over this time, spending your much anticipated annual leave sick with COVID, we wanted to do you a solid. 

We hit up two HR experts for their best tips when it comes to navigating this very scenario, because chances are you are kicking off the new year at work without the holiday you had banked on. 

Here's what they said. 

Can I swap out my annual leave for sick leave?

Put simply, yes. Absolutely you can.

As Mathew Paine from HR Expert Australia told Mamamia, "Section 89 of the Fair Work Act 2009 states that if an employee is sick or injured while on annual leave, they can use their paid sick or carer's leave entitlement instead of using their annual leave. 

"It is important to note that an employee needs to give their employer reasonable evidence that they aren't fit for work if their employer asks about it. Obtaining a doctor's note or medical certificate will put you in good stead."

If you're a casual or contract worker, you aren't entitled to either annual or sick leave. So unfortunately you can't be paid during either. 

What if I am isolating as a close contact?

The Fair Work Act 2009 does not provide an entitlement to personal leave if an employee is not sick, which as Mr Paine points out, would extend to being tested for COVID or isolating as a close contact.

"Employers and employees need to come to their own arrangements. This may include taking annual leave, taking any other leave available to them (such as long service leave or any other leave available under an award, enterprise agreement or employment contract), arranging any other paid or unpaid leave by agreement, or working from home or another location (if this is a practical option.)"

How do I navigate this conversation with my boss?

Melbourne HR Owner and Managing Director David Simpson has made this one super easy. 

Here's a template he whipped up for Mamamia that you can either get some inspo from, or fill in the blanks.

Hi Boss,

Hope you're well.

Unfortunately, I tested positive to Covid over the Christmas/New Year. My positive test is dated X Dec 21. Please see screen capture of the text from the pathology lab.

My isolation finishes on X Jan 22, therefore I will/won't be in the office as per my approved leave date.

Not a great end/start to the leave period! I am going to apply for sick leave over 'this date' and 'this date' as per the test and my government mandated isolation period. Can you please cancel my annual leave over that period so that I'm not 'double dipping'.

Looking forward to getting back on deck. I hope your leave was less eventful than mine!

My boss said no, what are my rights in this situation?

As Mr Simpson explains, this is not something that's up to your employer's discretion. If you are sick on annual leave you can apply to swap your leave around. 

"People don't tend to do it because it isn't really worth the hassle for the day or two that a cold lasts, but for longer periods of time where you have the spare personal leave the employee should consider swapping it out," he said.

As Mr Paine adds, however, it becomes a trickier conversation if you have been directed to take annual leave due to a yearly shutdown period. 

"An employee can be directed to take annual leave during a shutdown if their award or registered agreement allows it. However swapping it out [for sick leave] is still possible if you satisfy your workplaces usual sick policy and procedure."

Mr Simpson advises to be patient with your HR/payroll department. Because many workplaces aren't aware that this is something you're allowed to do, so they may need to go away and check it out for themselves. 

My sick leave is tied to my bonus. Is that allowed?

The accrual and use of personal/carer's leave is a workplace right under the Commonwealth National Employment Standards. 

HR Expert Australia says penalising an employee for exercising their workplace right can be problematic, and it's for that reason that they don't recommend an employer link a bonus scheme to the use of personal/carer's leave. 

"The problem lies with the reasons for an employee's absence; this needs to be considered otherwise employers might leave themselves open to discrimination or adverse action claims," Mr Paine told Mamamia.

During the current climate, linking the use of sick leave to a bonus can also encourage presenteeism when employees aren't fit for work....or, for example, have COVID-19 symptoms. 

"This can be dangerous given the current pandemic, and could result in the total closure of a business should all employees fall ill with COVID."

HR Expert Australia instead advises bonus schemes be linked to key performance indicators rather than legislated leave categories. 

I am an employer, how can I navigate this scenario?

Right now as we deal with unprecedented times, HR Expert Australia advises that you handle all requests to swap out annual leave for sick leave due to COVID with compassion, and in line with your business or company values.

"Many workplace laws, policies, terms and agreements do not deal effectively with the scenarios we now find ourselves in," Paine explained.

"It is currently a candidate's market. Putting aside the legal and employment rights aspects, taking a hard stance stance on this issue could mean the difference between retaining top performers verses them moving to a company where they feel more compassion and value," he said.

Feature Image: Mamamia/Getty.

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