Staff Absences and your Practice

Since the introduction of JobKeeper, many Practices have reported an increase in staff absences and unavailability.  While JobKeeper was intended to operate as a wage subsidy to benefit employers affected by Covid-19, it also subsidises additional leave in that staff receive the full $1500 fortnightly payment including if they don’t work, and when there is no available paid leave.

Some Practices are recruiting and employing additional staff to cover the absences.  This is an expensive and time consuming process in itself. For these Practices, JobKeeper is not meeting its goal of subsidising employers’ costs for wages and on this basis, it seems unfair.

In this article we explain when staff are permitted to be absent, and what you can do to minimise loss due to absences.

As a general rule of thumb you do not consider JobKeeper when assessing whether or not an employee is entitled to be absent.  In other words, participating in JobKeeper does not change or increase an employee’s entitlement to be absent.

Personal preference to self-isolate

Understandably, some employees prefer to self-isolate due to general Covid-19 concerns.  From an employment law perspective, an employee is not entitled to be absent due to a preference to stay at home based on a general concern.  An employee is entitled to make a request to take paid or unpaid leave for this reason, but the Practice can refuse it and require the employee to work.  If the employee refuses to work, the employer will be entitled to commence disciplinary action against the employee.  If an employee is terminated, he/she will no longer be entitled to JobKeeper.

Medical or regulatory requirement to self-isolate

The situation is different where the employee has a medical condition or is required by public health advice not to work.

For example, where the employee:

  • is required to self-isolate based on public health advice due to contracting Covid-19; coming into contact with a confirmed case; waiting for test results; or having returned from overseas travel.
  • has a medical condition making it unsafe to attend and work.
  • has a medical condition making him/her unfit to attend and work.
In these cases Practices are entitled to ask for evidence, such as a medical certificate, which will result in the absence being authorised.   Generally the leave will comprise personal leave (due to a medical certificate).  If there is insufficient personal leave, the employee may take up to two weeks unpaid pandemic leave if required to self-isolate, which is now covered by the Award.

There are two important points to remember: the taking of unpaid leave (such as pandemic leave or unpaid personal leave) will not affect the employee’s entitlement to JobKeeper (they still get paid JobKeeper), and very importantly, it is unlawful to treat an employee adversely due to medical illness.

When a Practice is already under pressure and stress on various fronts it is easy to become affected by heightened emotion including due to adverse impacts of employees being away sick, but it will not help the Practice to respond to those emotions by treating an employee adversely or unfairly.  It can be hard to be unemotional and objective in the current situation, but acting on emotions will almost always be unhelpful to the Practice and create additional work, division and distraction.

Authorised Leave

In addition, employees are entitled to be absent due to authorised paid or unpaid leave.  This might include:

  • annual leave; which needs to be approved by the Practice and taken at times agreed by the Practice.
  • compassionate leave; as provided in the National Employment Standards, such as when there is a death in the family.
  • personal leave to care for an immediate family member where there is an illness or emergency.  It may comprise an emergency if a school is suddenly closed without notice and there is no care for the employee’s children, but is unlikely to comprise an emergency where there is a planned school closure.  Therefore with remote schooling, employees will still be expected to work if the closure is planned and organised.  This means that remote schooling will not automatically entitle an employee to be absent from work for its duration.
  • other approved paid/unpaid leave such as leave without pay or study leave.
The main point is that in most cases, leave must be agreed and approved by the employer.  Unless the employee is otherwise authorised to be absent,  the employer can refuse it.
In terms of finding a win-win solution, Practices might also  permit the employee to work from home, providing there is work which can be performed remotely.  It is important to remember that the employer’s workplace health and safety obligations extend to an employee’s remote working location.  To mitigate risk we suggest employers enter into a Remote Working Agreement to evidence the suitability of the home office.

In order to support you, we have developed a suite of Pandemic Tools for your immediate access and use, which include:

  • Pandemic Plan for your Practice
  • Remote Working Agreement
  • Leave Without Pay Agreement
ClinLegal members can log into the portal and access now https://www.clinlegal.com.au/wp-login.php.  If you are not a member but would like access to these tools, or to discuss how we can help you, please email us info@clinlegal.com.au.

Please note the laws are evolving and may change in the coming days and weeks.  The above information is current as at the date of publication and is based on information made publicly available.  It is important to stay appraised of any developments or changes. This Circular is produced for guidance purposes only and is not a substitute for legal advice.  Legal advice should be sought for individual circumstances. For tailored advice for your Practice, please contact us for a confidential discussion:info@clinlegal.com.au