Can I provide extra pandemic leave to vaccinated employees?

Most likely, yes.

While traditional Personal / Carer’s Leave is available to employees who have tested positive to COVID-19, there are many pandemic related reasons why workers may be unable to attend work which don’t fit comfortably with traditional leave entitlements. Mandatory quarantine periods for close contacts of positive cases remain common across Australia but unless employees are able to work from home, they may be forced to access Annual or Long Service leave in order to be paid for the period of isolation.

Paid ‘Pandemic Leave’ for vaccinated employees provides a further incentive for those who are hesitant about receiving vaccines. Although it is not an entitlement for employees, it is a worthwhile consideration which can:

(a)  create a safer workplace;

(b)  avoid employees having to fall back on their leave entitlements; and

(c)   provide a sense of security.

If you are planning to introduce a form of paid leave for vaccinated employees, there are some important steps to take beforehand.

Australia Post have successfully introduced paid pandemic leave for vaccinated employees only. Employers should be aware CEPU opposed the policy, asserting Australia Post were essentially mandating vaccination in the workplace.

While we disagree with the Union’s position, it will be important for employers to consult with their employees (and their representatives) and assess whether there is significant opposition if alterations might be made. For example, Employers may consider whether some paid pandemic leave is available for unvaccinated employees who are experiencing financial hardship.

Consultation

To address any potential fall out before any particular disputes arise, it is essential to consult with employees, HSRs and union representatives about the proposed introduction of additional leave. In our experience, consultation with employees is one of the most important ways employers can protect themselves against employee disputes.

Therapeutic Goods Association (TGA) Compliance

It is likely that providing additional leave to vaccinated employees will be classified as a reward by the TGA. There are particular rules to be aware of, including that the offer:

(a)  must contain a statement that vaccinations must be undertaken on the advice of a health practitioner; and

(b)  refer to vaccines generally (i.e no brand names or type of vaccine specified).

For further explanation, click here and go to the section on ‘Offering Rewards’

Discrimination

Employees who hold a medical vaccine exemption may be able to claim that they are being treated less favourably on the basis of disability if they are denied access to the leave. This creates a risk to employers of unvaccinated employees bringing anti-discrimination claims.

To mitigate the risk, a medical exemption should qualify an unvaccinated and exempt employee to receive any additional leave provided to vaccinated employees.

We suggest using the wording from the public health directions in your state or territory.

Traditional Leave Entitlements and Covid-19 Absences

Retainer Clients are able to access additional guidance materials to help employers make decisions difficult decisions for their workplace.

Attached are two tables to assist with identifying which employee entitlement is most appropriate to cover a COVID-19 related absence:

(a)  A quick reference table to identify the types of leave available; and

(b)  A detailed table with relevant considerations to identify the most appropriate leave for the most common types of absence.

*Please always cross reference with your applicable Award or Enterprise Agreement as specific differences may apply.

The first table has already been distributed through to Retainer Clients, however, it serves as a valuable companion document to the more detailed table of considerations.

These leave entitlements represent a minimum obligation on employers and apply separately to an employer’s discretion to provide a form of additional paid pandemic leave.

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