Over the past week, there have been a number of significant developments in relation to measures to protect aged care workers and residents and to minimise the spread of COVID-19. Chief amongst these developments are the recent Fair Work Commission decision of 27 July 2020, entitling aged care workers to take paid pandemic leave, and the release of the ‘Guiding Principles for the safety of Victorian residents and workers’, entitling aged care workers to take unpaid single site leave.
We have covered each of these developments below, including what this will mean for providers in the short and medium term.
Paid pandemic leave
In a decision handed down on 27 July 2020, the full bench of the Fair Work Commission (Full Bench) has determined to amend the Aged Care Industry Award, Nurses Award and Health Practitioners and Support Services Award to temporarily provide ‘paid pandemic leave’ to employees, including casual employees engaged on a regular and systematic basis, working in the aged care industry.
Who can take paid pandemic leave?
The Full Bench is yet to finalise the exact wording of the new provisions – it heard submissions on the drafts from interested parties on 28 July 2020. Based on the wording of the drafts, the changes will give employees two weeks’ paid leave on each occasion they are prevented from working (including working from home) because:
- they are required by government or medical authorities or their employer to self-isolate or quarantine;
- they are required (on the advice of a medical practitioner) to self-isolate or quarantine because they are displaying symptoms of COVID-19, or are suspected to have come into contact with a person suspected of having COVID-19;
- they are in isolation or quarantine while waiting for the results of a COVID-19 test; or
- of measures taken by government or medical authorities in response to the COVID-19 pandemic – this presumably refers to orders for complete lockdown, but possibly has wider application.
Employees will not be entitled to take paid pandemic leave if they could instead take paid personal/carer’s leave, or if they are entitled to workers compensation as a result of contracting COVID-19. In other words, employers will not be incurring new liability for ongoing employees who have accrued sick leave, or for employees who contract COVID-19 through work – but the new provisions will create new costs in relation to long-term casuals, who do not ordinarily have access to paid sick leave, and ongoing workers who have used up their ordinary entitlements. Of course, the flip side of this is that casual employees who would otherwise pose a serious risk of infection to others will hopefully be motivated to stay safely at home.
If the leave is taken on the advice of a medical practitioner, the employee must (if required by the employer) provide a medical certificate. Presumably, though the draft determination is silent on this, the certificate will need to provide details of why the employee must quarantine or self-isolate. In all other circumstances, employees will be required to provide the employer with evidence that would ‘satisfy a reasonable person’ that the leave is taken for one of the reasons above.
The entitlement to paid pandemic leave will be available to employees between 29 July and 29 October 2020, with employees able to continue a two week period of leave beyond 29 October 2020 if the leave started within this three month period.
Unpaid single-site leave
On 22 July 2020, the ‘Guiding Principles for residential aged care – keeping Victorian residents and workers safe’ (Principles) were released after having been developed by industry leaders with input from the Government, peak bodies and unions. The Principles seek to protect Victorian aged care residents and workers through minimising the transmission of COVID-19 across facilities and can be accessed here.
The release of the Principles follows an announcement by the Federal Government on 19 July 2020 of a number of supports and funding measures aimed at assisting the implementation of the Principles and assisting providers to stop the spread of COVID-19.
The key aim of the Principles is to reduce the risk of aged care workers unintentionally transmitting COVID-19 by working across multiple sites. Victorian aged care workers should instead be based at only one residential aged care facility during the ‘high risk’ pandemic period.
When do the Principles apply?
The Principles are intended to be implemented by approved providers as soon as practicable; providers are encouraged to commence implementing roster changes from 27 July 2020.
At this initial stage, it is intended that the changes will be in effect until 25 September 2020, but they may be extended if necessary.
Who do the Principles apply to?
The Principles apply to all permanent (ongoing) and casual residential aged care workers who work in a designated hotspot in Victoria for multiple employers. Importantly, for practical reasons, the Principles do not apply to agency staff or contractors, even though agency staff were described recently as a high risk group in relation to the spread of COVID-19. The Principles also do not extend to emergency workers.
The Principles may also be implemented in other States or Territories (and more broadly in Victoria) in the future if circumstances require it.
What are the changes required under the Principles?
Under the Principles, any employee who works across multiple services is entitled to request, and must be granted, unpaid single-site leave from one residential aged care provider so that they can work solely at a single site operated by another provider.
Some of the critical practical details are:
- the employee’s primary and additional employment must be with an approved residential aged care provider;
- the employer must hold the employee’s position for a minimum of eight weeks for the agreed period of single-site leave;
- the employee can elect to extend the single-site leave period by giving written notice;
- the additional employer(s) have a right to request evidence of the employee’s elected primary job;
- employees will continue to be allowed to access their annual leave and long service leave entitlements only via their usual leave application and approval channels;
- continuity of service is protected (including for redundancy purposes) and long service leave will continue to accrue. Personal and annual leave will not continue to accrue with additional employer(s) during this period of unpaid leave; but they will continue to accrue if the employee is taking paid leave; and
- as a result of taking this leave, the employee must not be disadvantaged in the future with respect to progression, development, leaving and other opportunities in the workplace.
The Principles are intended to ensure that aged care workers working across multiple sites are supported, paid their usual income, and not disadvantaged when they choose to work (more safely) at a single residential aged care facility.
There are clearly a number of practical implications, including for the ability of providers to roster appropriately and the potential for workers to lose some entitlements.
The Federal Government acknowledged these complexities in the 19 July 2020 announcement, and has committed to providing funding to providers to reimburse workers for any lost entitlements. We expect that details of this funding will be announced by the Government shortly, and also further clarification regarding the Principles.
If you have any questions in relation to paid pandemic leave or unpaid single site leave, please contact a member of our national Aged Care and Retirement Villages team.
Julie McStay | Partner | QLD | +61 7 3338 7522 | [email protected]
Jacquie Seemann | Partner | NSW | +61 2 9020 5757 | [email protected]
Bridget Nunn | Special Counsel | SA | +61 8 8236 1129 | [email protected]
Matthew McMahon | Associate | QLD | +61 7 3338 7959 | [email protected]