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Are our employment laws undermining public health initiatives to stop the spread of novel Coronavirus?

As we all know, the current advice from the Australian Government aimed at preventing the spread of novel coronavirus is to self-isolate for 14 days if you have been in close contact with a proven case of novel coronavirus.

If the idea of binge watching the newest television series on Netflix, while eating into those personal leave days that never seem to get used, makes the thought of self-isolating seem like a dream – you may want to think again.

According to section 97 of the Fair Work Act 2009, to qualify for personal leave, an employee must be unfit for work because of an illness or injury affecting them. It is unlikely that this pre-requisite will be met where an employee is not diagnosed as ill but merely requires isolation. This means that if an employee is required to self-isolate, they will either be required to use their precious annual leave or long service leave, or if these types of leave are unavailable, the employee may be required to take unpaid leave.

The Australian Government’s advice to self-isolate for 14 days if you have been in close contact with the novel coronavirus is an important measure aimed at preventing the spread of the disease and the over burdening of our already strained hospital system.  However, the effectiveness of this measure relies on individuals self-reporting and self-isolating when they come into close contact with a confirmed case of the novel coronavirus. Ideally, employees would put the interests of the community ahead of their own economic interest. However, some employees, particularly those who find themselves without annual leave or long service leave available and who are unable to work from home, may not be in the financial position to self-isolate.

The wording of section 97 of the Fair Work Act 2009, limiting personal leave to circumstances where an employee is not fit for work because of an illness or injury affecting them, has the potential to seriously undermine the Australian Government’s public health initiatives to prevent the spread of the novel coronavirus.

The outbreak of the novel coronavirus and the impact that it is having in the wider community is an unprecedented situation that could not have been contemplated by the legislature at the time of the enactment of section 97 of the Fair Work Act 2009. However, it seems that in order to deal with the continuing threat of the novel coronavirus and to ensure containment of any outbreak of other novel viruses in the future, the criteria for eligibility for paid personal leave may need to be to be revisited to specifically deal with these types of situations.

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