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COVID-19: Employment

This factsheet is part of a series from Legal Aid NSW about COVID-19 and everyday law. For other factsheets, visit: www.legalaid.nsw.gov.au/get-legal-help/covid-19

I am a casual employee, what do I need to know?

If you are a casual employee, you do not have as many protections as a permanent employee.

  • Your employer can offer you fewer or no shifts.
  • You are not entitled to paid personal/carer’s (sick) leave if you get sick with COVID-19.
  • If you need to self-isolate, you are not entitled to paid sick leave or annual leave.

You do get some entitlements:

  • You are entitled to 2 days unpaid carer’s leave if you need to care for your child or a family member who is sick.
  • Most Awards have been changed to allow employees (including casuals) to take 2 weeks unpaid pandemic leave if:
  • you are required by government, medical authorities or your doctor, to self-isolate; or
  • you are otherwise prevented from working because of measures taken by government or medical authorities in response to the COVID-19 pandemic.

However, some changes to Awards will expire. You should carefully check the version of your Award that applies at the relevant time. If you are unsure if you are covered by an Award, you can use the Fair Work Ombudsman’s Find my award tool.

  • You might have long service leave if you have worked for the same employer for 10 years or more. You can use long service leave if you need to self-isolate. If you have 5 or more years of service and you are dismissed by your employer or you resign for medical reasons, or some other family or pressing necessity, you are entitled to a proportion of long service leave. You are entitled to 2 months of pay for every 10 years of service. For example, if you have worked for 5 years you will get 1 month’s pay. For more information about long service leave, you can contact NSW Industrial Relations.

I am a permanent employee, what do I need to know?

There are lots of ways that COVID-19 might affect you and your work.

Can my employer make me take annual leave, long service leave or reduce my hours?

  • Your employer can only reduce your hours if you agree to it.
  • Your employer can tell you to take annual leave if the request is reasonable. The request may be reasonable if the employer was forced to close because of COVID-19 or if you have excessive annual leave available. You should check your Award or Enterprise Agreement to see when your employer can tell you to take leave.
  • If you have 10 or more years’ service, your employer can usually direct you to take long service leave.
  • If you and your employer agree, you can now take any long service leave you have available without the usual one-month notice, and for periods shorter than one month. These changes are due to expire on 31 March 2022.
  • Most Awards have been changed to allow you to take double the amount of annual leave at half pay, but only if you and your employer agree. These changes are due to expire on 30 June 2022.

Can my employer cut my pay because of COVID-19?

  • Your employer cannot reduce your pay because of COVID-19.
  • Your employer can only reduce your pay if you agree to it. You should make sure this is only a temporary agreement. You cannot make an agreement with your employer to get less than the minimum entitlements in your Award or Enterprise Agreement.

If your employer has reduced your pay you should get urgent legal advice.

Can I be stood down without pay?

  • You can be stood down if you cannot be usefully employed because work has stopped, and it is not the employer’s fault.
  • Your employer is not required to pay you if you are stood down.
  • If you are covered by an Award, Enterprise Agreement or written contract that deals with stand downs, your employer must follow your contract or Enterprise Agreement.
  • You can only be stood down if you have no work to do, not just if you have less work to do.
  • The stand down must also be necessary. A stand down would not be necessary if you can work from home or work in another position.

The Government has told my employer to stop trading. Can I be dismissed?

  • If you have been dismissed because your employer has been forced to close, then your dismissal is likely to be a genuine redundancy.
  • A dismissal is only unfair if it is harsh, unjust, or unreasonable and it is not a genuine redundancy.

I have been dismissed. What are my entitlements?

If you are dismissed, your employer must pay you the entitlements that are owed to you.

In New South Wales, all employees who have 5 or more years of service and are dismissed for any reason except serious and wilful misconduct, are entitled to long service leave. You are entitled to 2 months of pay for every 10 years of service. For example, if you have worked for 5 years you will get 1 month’s pay.

If you have more than 10 years of service, you are entitled to long service leave if your employment ends for any reason.

Notice

  • If you are dismissed because your employer has closed, either temporarily or permanently, your employer must give you notice of the termination of your employment. How much notice you are given depends on how long you have worked for your employer.
  • If you are dismissed on the spot and not given notice, your employer should give you a notice payment.
  • Casual employees are not entitled to notice.

Redundancy

  • If your employer has 15 or more employees and you have been employed for one year or longer, you are entitled to a redundancy pay if you are dismissed because there is no longer a job for you to do.
  • Apprentices are not normally entitled to redundancy pay
  • In some sectors, employers with fewer than 15 employees are required to pay redundancies.
  • It is important to check your contract, Award or Enterprise Agreement to see what it says about redundancy.
  • If your employer is genuinely unable to pay you your redundancy pay, or they have offered you another acceptable job, they can apply to the Fair Work Commission for an order to pay you less redundancy pay or no redundancy pay.
  • Casual employees are not entitled to redundancy pay.

Leave

  • Your employer should pay out your unused annual leave.
  • Your employer does not have to pay out your unused paid personal/carer’s sick leave.

I am sick with COVID-19 and can’t go to work. What I am entitled to?

  • If you cannot go to work because you are sick with COVID-19, you can take paid personal/carer’s sick leave, if you have it.
  • If you have used all your paid personal/carer’s sick leave you can ask your employer to use any other paid leave you have left, such as annual leave.
  • If you have used up all your paid leave entitlements, you can take unpaid sick leave.
  • You must give your employer reasonable evidence of the illness if they ask for it.

Can my employer refuse to let me work from home?

  • There is no general right to work from home. Working from home is something that is normally agreed between you and your employer. You should check your contract of employment, Award, Enterprise Agreement, or workplace policy to see what it says about working from home.
  • Workplace Health and Safety laws apply to you even though you are working from home.

If you are concerned about how these laws affect you, you can contact Safe Work NSW on 13 10 50.

I am not sick, but I have to self-isolate. What am I entitled to?

If you are not sick, but you have to self-isolate, your employer doesn’t have to pay your normal pay and you are not entitled to use any paid sick leave that you may have.

If you are in this situation you may be able to:

  • work from home while you are self-isolating. If this happens you do not need to take any leave and your employment will continue as normal; or
  • use any other paid leave that you have available, such as annual leave or long service leave.

If you are covered by an Award, most Awards have been changed to allow employees (including casuals) to take 2 weeks unpaid pandemic leave if:

  • you are required by government, medical authorities or your doctor, to self-isolate; or
  • you are otherwise prevented from working by measures taken by government or medical authorities in response to the COVID-19 pandemic.

If you are not sure whether you are covered by an Award, you can contact the Fair Work Ombudsman to find out or use their Find my award tool.

You also may be eligible for the NSW Government Test and Isolate support payment if you are unable to work while waiting for your test results.

What if my employer wants me to go to work, but I want to self-isolate?

  • If you are not sick and have not been told to stay home by your employer or the government, you are not entitled to your normal pay or to paid personal/carer’s sick leave if you choose to stay at home.
  • You can try and make an agreement with your employer to work from home or take paid or unpaid leave.
  • If you are unable to reach an agreement with your employer and they tell you that you must go to work, then you have to go to work as long as it is safe to do so. If you are not sure whether it is safe to go to work, you can talk to your doctor or call SafeWork NSW on 13 10 50.
  • If your employer dismisses you because you decided to self-isolate, you should get urgent legal advice. There is a 21-day time limit to apply for unfair dismissal or general protections dismissal at the Fair Work Commission.

Can I take leave if a family member is sick with COVID-19?

  • If you can’t work because you need to look after a family member or a member of your household who is sick with COVID-19, you can take paid personal/carer’s sick leave.
  • If you have used all your paid personal/carer’s leave entitlements, you can use other types of paid leave like annual leave or long service leave.
  • You may also be able to take unpaid personal/carer’s leave.
  • You must give your employer reasonable evidence of the illness or unexpected emergency if they ask

for it.

Am I entitled to paid leave if my child’s school has closed because of COVID-19 and I am a carer?

  • If your child’s school has been closed because of COVID-19 and you can’t work because you need to care for your child, you may be able to use your paid personal/carer’s leave.
  • If you have no paid personal/carer’s leave left, you can ask to use your annual leave, or ask to take unpaid leave.

My employer wants me to get vaccinated against coronavirus. Do I have to get vaccinated?

As an employee, you have to follow the lawful and reasonable directions of your employer. In many cases it will be reasonable for your employer to require you to get a COVID-19 vaccine to go to work. If you do not follow a lawful and reasonable direction of your employer it can be serious misconduct and be a valid reason for dismissal.

Can my employer make me get tested for COVID-19?

Your employer can make you get tested for COVID-19 if it is:

  • a requirement of a public health order.
  • to comply with an obligation of a Work, Health and Safety law.
  • a requirement in your contract of employment or Enterprise Agreement.

If none of these apply, your employer can request that you get tested for COVID-19 before you go to work, but only if it is lawful and reasonable to do so. It may be reasonable for your employer to tell you to get a COVID-19 test before going to work if public health advice supports this.

Should I be paid for the time it takes me get tested for COVID-19?

If your employer tells you to get tested and it is not a requirement of a public health order, the time you take to get tested is considered work time and you should be paid for it.

If a public health order says you need to get tested or you want to get tested yourself, you are generally not entitled to be paid for the time it takes to you to get tested for COVID-19.

If you are getting tested because you are sick, you can take paid sick leave. If you are not sick you can talk to your employer about taking paid annual leave or other unpaid leave.

You should check your Award, Enterprise Agreement, contract of employment or workplace policy for any leave that may be available to you.

You also may be eligible for the NSW Government Test and Isolate support payment if you are unable to work while waiting for your test results.

When is it reasonable?

It will be reasonable for your employer to require you to get a vaccine if:

  • A specific law, such as a public health order, requires you to be vaccinated against COVID-19.
  • If your work involves interacting with people with increased risk of getting COVID-19, such as workers in hotel quarantine, airlines, and border control.

It will probably be reasonable for your employer to require you to get a COVID-19 vaccine if:

  • Your work involves interacting with people who are vulnerable to COVID-19, such as working in aged care.
  • Your work involves interacting with a lot of customers, such as a retail worker.
  • There are high levels of community transmission of COVID-19.
  • You work in situations where infection with COVID-19 at work could lead to a super spreader event, such as childcare or schools.
  • You work close to other employees and there is a risk of COVID-19 spreading in your workplace.
  • You are working in a place with high rates of community transmission of COVID-19.

When it is unreasonable?

It may not be reasonable for your employer to direct you to get a COVID-19 vaccine if:

  • You are working from home.
  • You do not have close contact with the public or other employees while you are at work.

If there is a risk to your health, such as if you have allergic reactions to vaccines, it may not be reasonable for your employer to require you get vaccinated against COVID-19. If you are in this situation you should speak to a doctor and get legal advice.

What if my employer dismisses me for refusing to get vaccinated?

If you are dismissed for refusing to get vaccinated against COVID-19, the dismissal may be unfair if it was not reasonable for the employer to make you get the vaccine.

If this happens, you should get legal advice. There is a strict 21-day time limit to apply for unfair dismissal at the Fair Work Commission.

I have to get vaccinated for work, but I don’t want to. Should my employer pay me?

If a public health order or reasonable workplace direction requires you to get a vaccine as a condition of going to work, but you don’t want to, your employer doesn’t have to pay you if you are not working.

You may be able to negotiate with your employer to take leave without pay or paid leave such as annual leave or long service leave.

You are only entitled to paid personal sick leave if the reason you are unfit for work is because of illness or injury.

If my employer asks me if I am vaccinated, do I have to answer?

If you are a health worker or education and care worker, the public health orders say you must give information about whether you are vaccinated against COVID-19 or have an approved medical exemption to your employer.

If you are not covered by the public health orders, your employer is allowed to ask about your vaccination status. Your employer can’t force you to give the information if you don’t want to. But if you do not follow a lawful and reasonable direction of your employer it can be serious misconduct and be a valid reason for dismissal.

It is probably reasonable for your employer to direct you to provide information about your vaccination status if there is a good reason for it. For example, if your employer needs this information so that it can meet its work, health and safety obligations to other staff and customers of the business.

Am I eligible for Centrelink?

You can find out about your options on the Centrelink website.

You might be able to get help if:

  • You are not going to work because you have to care for children.
  • Your employer does not pay any of your wages.
  • You have been dismissed from work.
  • You are in hospital or in isolation.
  • You have no paid personal/carer’s leave left and you are in isolation or hospitalised.

Am I eligible for other government support payments?

You may be eligible for the Pandemic Leave Disaster Payment if you don’t have access to leave entitlements and you can’t earn an income because you:

  • have to self-isolate or quarantine due to a positive coronavirus case, or
  • are caring for someone with COVID-19.

For more information visit the Services Australia website: https://www.servicesaustralia.gov.au/pandemic-leave-disaster-payment-new-south-wales

You may be eligible for the NSW Government Test and Isolate support payment of $320 if you need a COVID test, and self-isolate and you cannot work from home or access other paid sick leave or support payments. For more information visit the Service NSW website: https://www.service.nsw.gov.au/transaction/apply-test-and-isolate-support-payment

Where can I find more information?

There is lots of information about COVID-19 and employment on the Fair Work Ombudsman website.

The Fair Work Ombudsman also has more information about COVID-19 vaccinations and the workplace.

The best source of information about long service leave is NSW Industrial Relations.

The OAIC has information about vaccines and privacy rights.

There are a range of payments available for workers who have lost their work because of COVID-19. Further information is available from the Department of Social Services.

If you have concerns about workplace health and safety including working from home, you can contact Safe Work NSW on 13 10 50.

How can I get help?

For free legal help call 1300 888 529 or call your local Legal Aid NSW office.

There is also a series of factsheets about COVID-19 and the law available on the Legal Aid NSW website to assist you to manage all the changes that are happening in our community.

If you need an interpreter, call the Translating and Interpreting Service on 131 450 and ask for LawAccess NSW. If you find it hard to hear or speak, call the National Relay Service on 133 677 and ask for LawAccess NSW or visit www.relayservice.gov.au.

This factsheet is intended as a general guide to the law. Do not rely on this information as legal advice. We recommend you talk to a lawyer about your situation. This information is correct at the time of writing, however, it may change.

CVCIV01 | 13 January 2022 | © Legal Aid NSW