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Influenza and Your Workplace – Frequently Asked Questions

The following information is provided to assist you in dealing with influenza-related workplace issues this winter.  This information will be updated as the issues develop.

A national hotline has been set up by the Commonwealth Department of Health and Ageing to provide health information on Human Swine Flue (H1N1 Influenza), and can be contacted on 1802 007.

Further health information on H1N1 Influenza is available from the Department of Health's website.

If you have workplace questions relating to occupational safety and health, contact Worksafe on 1300 307 877.

The information provided here relates to those employers and employees covered by the Western Australian labour relations system only. If you have any specific questions relating to your workplace, employment or business, call Wageline on 1300 655 266.

Click on the links below to jump to answers to the relevant question.

General questions about the workplace

  1. When can an employee take paid sick leave?
  2. When can an ill employee take unpaid sick leave?
  3. What is meant by “proof of illness" to satisfy a reasonable person?  
  4. Can an employer direct an ill employee to take sick leave?
  5. Can an ill employee be terminated if they are absent from work and have no sick leave available?
  6. When can an employee take carer’s leave?

In the event of an influenza pandemic

  1. Can an employer require employees to stay away from the workplace?
  2. Can employees be directed to work in different ways?
  3. What happens if the workplace is still operating and employees are not reporting for work?
  4. Can employees choose to take annual leave during an influenza pandemic?
  5. Can an employer require an employee to take annual leave during an influenza pandemic?
  6. Do employers have to continue to pay wages if the workplace is closed?

General questions about the workplace

1. When can an employee take paid sick leave?

An employee who has the flu can take sick leave if their dependents are sick and they have accrued sick leave under the Minimum Conditions of Employment Act 1993 or their relevant award and/or agreement. Employers can request proof of illness to satisfy a reasonable person of the employee's entitlement to sick leave.

2. When can an ill employee take unpaid sick leave?

An employer may agree to allow an ill employee to take leave without pay if their paid sick leave entitlement has been exhausted. Any such agreement should be put in writing. 

3. What is meant by “proof of illness” to satisfy a reasonable person?

An employer can require an employee to produce reasonable evidence to substantiate a claim for sick leave. Reasonable evidence may include, but is not limited to:

  1. a medical certificate; 
  2. a statutory declaration by the employee, a friend or a family member; 
  3. the employer’s knowledge of an employee’s pre-existing condition or long term illness; or
  4. the employee’s physical appearance.

4. Can an employer direct an ill employee to take sick leave?

Generally, an employer is unable to force employees to take sick leave.  However, employees can be instructed to stay away from the workplace if they are sick and pose a safety risk to the workplace.
An employer can require any ill employees to stay away from their workplace if the employer believes there is a risk to the employee, other staff or clients. 
Where an employee is a health and safety risk to the workplace, but chooses not to take sick leave, they may seek alternative leave arrangements with their employer (options include temporarily working from home, taking leave without pay or use of annual leave).

5. Can an ill employee be terminated if they are absent from work and have no sick leave available?

It is generally unlawful to terminate an employee who is temporarily absent from work because of illness or injury.

6. When can an employee take carer’s leave?

Access to carer’s leave is available if an employee is required to provide care or support to a family or household member who is ill or injured, or if there has been an unexpected emergency affecting that member.
Paid carer’s leave can be taken if the entitlement is available or has accrued. 
Unpaid carer’s leave (of up to two days on each occasion) may be available if an employee has exhausted their carer’s leave entitlement, or if they are employed on a casual basis.

In the event of an influenza pandemic

1. Can an employer require employees to stay away from the workplace?

An employer must take reasonable steps to ensure the safety and health of their employees. If an employer is unable to make the workplace safe for employees, they can instruct employees to stay away from the workplace. Employees can also be instructed to stay away from the workplace if they are sick and pose a safety risk to the workplace.
If staff are directed to stay away from the workplace, the employer will need to be clear on their obligations under the Minimum Conditions of Employment Act 1993 or the relevant award or agreement in terms of their employees' pay and entitlements.

2. What happens if employees do not report for work?

Employees are reasonably required to contact their employer if unable to attend work if they are sick, a member of their family is sick or they have been asked to remain in home quarantine.

It is important that employers have an updated employee contact list.

3. Can employees be required to work in different ways?

It is important that both employers and employees respond flexibly to the different scenarios that can arise during an influenza outbreak. In the event that the current situation changes and becomes a severe influenza pandemic, it is possible that some workplaces may have to restructure working arrangements (i.e. changed rostering, working from home). 
Any change to working arrangements must comply with the provisions in the Minimum Conditions of Employment Act 1993 or the relevant award or agreement.

Generally, employees cannot be forced into any unilateral changes to their employment conditions (unless there are legitimate occupational health and safety risks). 
Employees should have the opportunity to seek advice on any proposed changes to working arrangements. 

4. Can employees choose to take annual leave during an influenza pandemic?

Normal rules concerning annual leave continue to apply during an influenza pandemic.  Employers and employees should check the conditions prescribed by the Minimum Conditions of Employment Act 1993 or their relevant award or agreement.

5. Can an employer require an employee to take annual leave during an influenza pandemic?

Generally there must be agreement between an employer and employee to take annual leave.  However, this will depend on the provisions of the Minimum Conditions of Employment Act 1993 and/or their award and/or agreement.

6. Do employers have to continue to pay wages if the workplace is closed?

In most circumstances the current H1N1 influenza appears to cause a relatively mild illness, and consequentially it is very unlikely that workplaces will be required to close. However, a severe pandemic scenario may test how long businesses can financially sustain wage payments if they close for an extended period.

In this event it would be important to identify whether the relevant award or agreement contains a "stand-down" provision. This may allow for an employee to be stood down if they cannot be usefully employed because of something that happened for which the employer is not responsible, or over which the employer has no control.
If the employer and employee agree to modify the employment arrangements temporarily, it is advised that any modifications be put in writing.