Can You Force an Employee to Leave Work if They Are Sick?

Sickness spreads quickly within the workplace, and this has especially been the case during the COVID-19 pandemic. When an employee shows up to work sick, not only are they more likely to spread their illness, but they will also cost your business money. On average, each employee loses 6.5 working days of productivity annually due to employees coming to work sick. Therefore, it is important to know whether you can force an employee to leave work if they are sick. To assist, this article explains how to manage sick employees and sets out the essential laws surrounding taking sick leave in Australia. 

How Much Sick Leave Can Employees Take?

The amount of leave your employees are entitled to will depend on how often they work. For example, you must award full-time employees 10 days of paid personal leave. However, part-time employees are entitled to a pro-rated amount, which will depend on their work hours. On the contrary, you do not have to provide casual employees with paid personal leave. 

Employees may be awarded more generous sick leave entitlements depending on their: 

• modern award;
• enterprise agreement; or 
• employment contract. 

If an employee has used all their paid personal leave entitlements, they can use other paid leave entitlements, e.g. annual leave. They can also take unpaid sick leave.

What Are the Notice Requirements for Taking Sick Leave?

If a permanent employee wishes to take sick leave, they must notify as soon as possible and set out their expected leave period. When an employee takes sick leave, you can request evidence, such as a medical certificate that sets out the reason for the leave. The relevant modern award may also contain provisions about the type of evidence that your employee must provide.  

Do I Have Any Obligations When an Employee Is Sick?

As an employer, you must ensure the health and safety of your workers. Conversely, your employee must take reasonable care of their health and not adversely affect the health of others. 

Therefore, if you suspect that an employee is posing a health risk, you can ask them to obtain a medical certificate to indicate whether they are fit for work.

Tips for Employers

1. It Starts With Culture

Setting up an organisational culture that supports and encourages employees to take personal leave in appropriate circumstances will help to avoid spreading sickness to other employees. Sometimes, employees assume their boss expects them to be working through sickness. Therefore, the workplace culture needs to express the importance of taking sick leave. 

2. Sick Leave Policy

You should create a workplace leave policy and establish expectations around when employees can take sick leave. Your employees must be aware of any notice requirements around taking sick leave and any expectations that you have regarding coming to work sick. Therefore, employees will avoid coming in when they are unwell, since this policy will inform them whether they can take sick leave.

3. Clear Employment Contracts

You may wish to include a clause within your employment contracts about sick leave. This clause should acknowledge that your employee may have to attend a medical examination to determine whether they are fit for work.

4. Allow Employees to Work Remotely

If your business can accommodate working from home arrangements and an employee still wants to work, then offering and encouraging remote working might be the best solution. This prevents the spreading of infection throughout the workplace, which could, in turn, lower the productivity of multiple employees. 

5. Wellbeing

To improve health within the workplace, you may wish to focus on health and wellbeing within your business’ culture. This may include offering:

• wellness programs;
• subsidised gym memberships; or
• annual flu vaccinations.

Key Takeaways

Employees are mostly entitled to paid sick leave when they are sick unless they are casual employees. It is essential to set out your employee’s responsibilities, including improving organisation culture or including sick leave clauses in employment contracts. 

If you need help with a sick leave policy, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

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