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Can I Claim Paid Leave if I’m Forced to Isolate as a ‘Close Contact’?

Can I Claim Paid Leave if I’m Forced to Isolate as a ‘Close Contact’?

With the Omnicron variant racing through the community, more and more people are being required to isolate because they have been in ‘close contact’ with a COVID-19 positive person.

If you’re not able to work remotely, questions have been raised if you can claim paid leave while in forced isolation?

In Australia, all permanent employees accrue paid annual leave and personal leave and those who have been employed for long enough accrue paid long service leave.

Personal leave is a collective term which includes both sick leave and carer’s leave. Strictly speaking, an employee is only entitled to claim paid personal leave if:

  • they are not fit for work because of a personal illness or personal injury (sick leave); or
  • they need to provide care or support to a member of their immediate family or household because of a personal illness or injury, or unexpected emergency affecting that person (carers leave).

A permanent worker who has contracted COVID-19 even if asymptomatic is suffering from a ‘personal illness’ and is obliged to isolate and therefore they would be entitled to claim paid sick leave.

A permanent worker who is required to isolate because they are a ‘close contact’, but who has not tested positive for COVID-19 is not suffering from a personal illness and strictly speaking, is not entitled to claim sick leave. However, if a member of a worker’s immediate family or household has tested positive, and the worker is required to provide care and support to that person, the worker could claim paid carer’s leave.

In addition, it’s arguable that a need to isolate despite not having tested positive for COVID-19 could be said to be ‘an unexpected emergency’. In this case, a worker who is required to provide care or support to a member of their immediate family or household who is required to isolate but is not COVID-19 positive, could also claim carers leave – even if they cannot claim sick leave for themselves.

That is a somewhat unusual situation, however could potentially provide a way for a worker to claim paid personal leave if they do not satisfy other criteria for the same.

Please note that just because a worker is not strictly entitled to claim paid sick or carers leave, this does not mean that the employer can’t agree to allow that worker to access their accrued paid personal leave. It’s entirely at the employer’s discretion.

In summary, a worker who is required to isolate but has not tested positive to COVID-19 could claim paid personal leave if:

  • they are required to provide care and support to a member of their immediate family or household or
  • their employer agrees to pay them personal leave even if they are not strictly entitled to it.

If neither of these options apply, the alternative option for a worker who is required to isolate as a ‘close contact’ but is not COVID-19 positive is to claim paid annual or long service leave.

In general, annual or long service leave must be requested by the employee and approved in advance by the employer. However, in our view, it would be entirely unreasonable for an employer to refuse to pay annual or long service leave to a worker who is required to isolate but has not tested positive to COVID-19 simply because that worker has been unable to provide advance notice of their intention to take paid annual or long service leave.

While it might be disappointing for some workers to have to use their annual leave – which is intended for recreation / holidays – to maintain their income while isolating, for most people this would be preferable to losing income entirely while isolating.

Workers who either cannot access paid leave entitlements or have no such entitlements – either because they have exhausted their accrued entitlements or are casual employees – may be entitled to claim payment from the Federal Government’s Pandemic Leave Disaster Payment scheme. This scheme provides up to $750 for each 7 days of isolation to eligible workers. Information on how to claim Claim can be found on the Services Australia website

During a worldwide pandemic, when all members of the community may be required to make sacrifices, it is hoped that employers who have the financial ability to do so will adopt a flexible and generous approach to workers who are required to isolate but who are unable to access paid leave.

Given that isolation by ‘close contacts’ is to the benefit of the community as a whole by helping to keep infection rates as low as possible, in our view, employers who have the financial ability to do so should do their part by:

  • allowing a worker to claim paid personal leave from their accrued leave balance even if they do not satisfy the strict criteria to do so; or
  • allow a worker to claim paid annual or long service leave from their accrued balance even if they are unable to give advance notice; or
  • allow workers to take paid leave in advance if they have exhausted their accrued leave entitlements; and even
  • for employers who are able, to grant their workers a limited amount of paid leave on an “ex gratia” basis if they are casual employees or have exhausted their accrued leave, or to prevent them from having to use all of their annual leave, to ensure that they can retain some annual leave for recreation / holidays.

Andersons Solicitors has a dedicated team of lawyers specialising in Employment Law. If you or someone you know has a workplace issue and require legal advice or assistance you can contact our employment law specialist Margaret Kaukas.


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Get in touch with today's blog writer:
Margaret Kaukas

Special Counsel in Employment Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.


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