Fay Calderone, Hall & Wilcox
Fay Calderone, Hall & Wilcox

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Employers are now paying much more attention to how they manage sick leave, an area that has traditionally been quite ad hoc, a workplace lawyer says.

The elevated work health and safety risks brought about by the COVID pandemic requires more rigidity around managing sick leave, Hall & Wilcox partner Fay Calderone tells HR Daily ahead of an upcoming webinar.

One particular area that needs attention is when sick leave should be taken, Calderone says, as too many employees have a 'soldier on' approach.

"The perception around sick leave being [a] weakness, or selfish, may have crept into workplace cultures, certainly in some industries more than others," she says.

"But now we're seeing that flipped on its head and it's seen as perhaps selfish for an otherwise fit and healthy person to continue to soldier on with a sniffle that may not affect them particularly badly but that could be quite disastrous for the broader workforce and in particular for vulnerable populations within that group."

Protecting vulnerable workers

There's been a lot of public discourse around protecting vulnerable populations, but employers play a key role in setting new expectations, says Calderone.

The number of employees now disclosing health conditions such as heart issues or autoimmune diseases has risen in light of COVID-19, she says.

This didn't occur previously, as these conditions often don't affect the individual's ability to perform the inherent requirements of their role, "but in these particular circumstances, they've been identified and called out by health authorities as vulnerable populations".

Therefore, "employers need to be robust in their workforce management policies and directions around managing the vulnerable... [because] other employees won't necessarily know who's vulnerable."

Addressing presenteeism culture

It's critical to develop general protective policies and procedures, but it's even more important to enforce these in high-risk environments where there is a culture of presenteeism or high stakes, such as a results-oriented sales environment where employees are reluctant to take sick leave.

One possible way to combat this is through a working from home policy, says Calderone. "Some of those environments have not historically allowed work from home [in normal times]. Even if you don't want to adopt a work from home policy in perpetuity, [do so] at least until there's a vaccine or while we're in this vulnerable period or limbo."

This will help ensure employees who feel fine but might have a sniffle, for example, can stay away from the workplace.

"There are other circumstances where working from home wouldn't be possible or you wouldn't give employees the option – if they're sick, they're sick. They should take the rest.

"But if you're managing a culture of presenteeism and where employees are going to be adversely affected for taking sick leave and you think that's going to be contrary to what you're trying to achieve, particularly if you're trying to protect the vulnerable, then maybe that's a backup plan that you've got to put in place."

Special leave considerations

Employers also need to consider their approach to sick leave when it comes to casual employees and contractors, who don't have entitlements, says Calderone.

Organisations can, for example, implement an interim policy for those who wouldn't typically be entitled to paid sick leave, while being careful in light of the Rossato decision not to confer permanent entitlements.

If it is "embedded in sick leave policies and it's very carefully framed as being something that is for the protection of the workforce for a limited period of time from a work health and safety point of view at this stage... then that may go some way to make sure that [workers'] behaviours aren't contrary to [WHS goals]".

In an upcoming webinar, Calderone will discuss employers' specific obligations in light of COVID-19; sick leave policies and enforcement; and fitness for work evidence – learn more and register here. (Premium members enjoy complimentary registration; limited casual passes are also available.)