Is It Legal To Substitute Annual Leave For Sick Leave?

Picture the scene: you’ve organised a week off work for some much-needed R&R. On the first day of your holiday, you’re struck down with the flu. Instead of sunning it up on the beach, you spend the entire week coughing up phlegm in bed.

If you’d been at work, you definitely would have called in sick on these days – so why should annual leave be any different? Let’s take a look at the legalities.

It might surprise you to learn that it is entirely legal to request sick leave during your annual leave period. This is specifically covered in section 90 of the Fair Work Act 2009.

Here’s the skinny from the Australian Fair Work Ombudsman:

Annual leave when sick or injured

If an employee is sick or injured while on annual leave, the employee can use their paid sick or carer’s leave entitlement instead of using their annual leave.

The employer can still request the employee provide notice and evidence when taking sick or carer’s leave while on annual leave.

An employer can’t direct an employee to take annual leave while they’re taking sick or carer’s leave.

Here’s some additional insights from Ai Group’s HR Resource Centre:[related title=”More Is It Legal?” cat=”Work” tag=”Is-It-Legal?” items=”3″]

“Where an employee comes back to work after a period of annual leave and lets the employer know that they were sick for a portion of their annual leave, they can use their personal leave and have their annual leave re-credited…The employee is taken not to be on annual leave for that time. This means that an employee is entitled to swap their annual leave for personal leave.

“If the employee provides the appropriate notice and a medical certificate covering the days they claimed they were sick, the employer should do a payroll adjustment to pay personal leave for that period and re-credit their annual leave back to them.”

So there you have it. If you get sick during your break, you can reclaim your annual leave by substituting it for sick days – provided you have a doctor’s certificate to back it up, of course. Remember this trick the next time you sustain a minor injury during the big Chrissy break!

Did you just catch yourself wondering if something was legal or not?
Let us know and we may be able to answer it in our next Is It Legal? feature.

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