10 March 2023

What counts as a family emergency for employees?

JB Solicitors


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Employees are entitled to personal / carer's leave (paid or unpaid), which may be used for leave for a family emergency.
Australia Employment and HR
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What is a valid reason for a family emergency in employment law matters in Australia? Employees and employers may experience unforeseen circumstances. For example, personal issues may arise such as a car accident, a family member's mental health problem, or childcare issues. However, is it legal for workers to take urgent leave for their families? Are there laws that support such emergency leave?

Since 2010, the National Employment Standards (NES) has provided employees leave entitlements regardless of contract terms or agreements. NES also covers the national workplace relations system. Employees are entitled to paid personal/carer's leave, unpaid carer's leave, paid/unpaid compassionate leave, and paid domestic violence leave under the NES. Employees can use this type of leave to deal with:

  • A family emergency/unexpected emergency affecting an employee
  • Childcare responsibilities (for instance, caring for disabled children)
  • Personal matters
  • Death or serious illness of immediate or close family members

Read on to know more about family emergency leave.

What Does the Fair Work Act 2009 Say?

According to Section 97 of the Fair Work Act 2009, an employee may take paid carer's leave to provide care or support to an immediate family member or household member. These immediate family or household members may require care or support due to an unexpected emergency. But, what defines an "unexpected emergency"? Here are some examples:

Example 1

Mark had to care for his three children after his wife, Edith, had a miscarriage. Edith was also hospitalised in the next city since no hospitals were able to take her in. Hence, Mark took a family emergency leave to take care of Edith.

Example 2

George entered into a parenting plan with his ex-wife Carol. According to the agreement, Carol will pick up her child from school at 4:30 pm on weekdays. However, Carol fell ill and is unable to pick up her child. George then had to take a leave so he could pick up his child at school.

Types of Family Emergency Leaves

1. Paid Personal/Carer's Leave (Sick Leave)

Employees may fall sick or they may be responsible to take care of someone who is ill. This type of leave has strict requirements that employers should follow in adherence to the NES. Employees should provide enough evidence to back up their claims for paid personal/carer's leave.

Permanent full-time employees are entitled to ten days of paid personal and caregiver leave for every year of continuous employment. Permanent part-time employees and permanent employees working variable hours are entitled to:

  • A pro rata amount based on the number of ordinary hours worked in a two-week fortnightly period; or
  • 1/26th of the employee's ordinary hours of work in a year, per year of service.

Casual employees are not entitled to paid personal/leave or carer's leave. However, they are entitled to two days of unpaid carer's leave on certain occasions. Employees are eligible to apply for a carer's leave only if they are taking care of immediate family members. People who are classified as immediate family members are:

  • Spouse/De facto partners
  • Children
  • Parents or grandparents
  • Grandchildren
  • Siblings

Employees should ensure to justify their family emergency in regards to personal /carer's leave. This includes providing documentation like a letter from a doctor stating that the employee is "unfit for work". For immediate family members, the carer/employee may also provide a medical certificate.

Family Emergency: Encashing Paid Personal/Carer's Leave

Employees who are bound by agreements and awards may cash out their personal/carer's leave if:

  • A separate written agreement is made each time an employee takes personal or care leave;
  • The employee retains a balance of at least 15 days of untaken paid personal/carer's leave after any personal/carer's leave is cashed out;
  • The employee receives at least the full amount that would have been due if the employee had taken personal/leave carer's instead.

2. Unpaid Carer's Leave

Employees are entitled to two days of unpaid carer's leave when an employee's immediate family member or someone who lives with them requires care or support. This includes illnesses, personal matters, or family emergencies. An employee may take unpaid leave due to childcare for:

  • Each occasion as a single continuous period of up to two days; or
  • Any number of separate periods agreed upon by the employee and their employer.

An employee may not take unpaid carer's leave during a specific period if the employee could instead take paid personal/leave carer's. However, this does not apply to casual employees who do not have the option of taking paid personal/leave.

3. Compassionate Leave

Compassionate leave is another type of family emergency leave that employees are entitled to. This leave is available when a member of an employee's immediate family or household suffers from a personal illness or injury that threatens their life. Employees are entitled to two days of paid compassionate leave per circumstance. However, this leave is unpaid if they are casual employees.

4. Domestic Violence Leave

Employees and casual employees are entitled to five days of unpaid family and domestic violence leave per year. This type of leave is applicable for a full five days from the employee's first day of work. The 5 days renew every 12 months, but they do not accumulate from year to year if they are not used. Employees may take leave if they need to do something to deal with the effects of family and domestic violence.

Employers should keep in mind that any information they received from their employees for a family emergency should be kept confidential. This is true especially if the employee is required to provide reasonable evidence of the specific circumstances that entitle them to the leave. However, they may disclose any information to the government and safety services if a domestic violence leave is involved.

Importance of Seeking Legal Advice

JB Solicitors is a law firm that can aid clients who seek legal advice regarding employment law matters. These matters may include people who have employment contract disputes, unapproved family emergency leaves, or unfair work dismissal.

Our team of lawyers may also help lodge domestic violence leaves and help with other family law matters as well.

Contact us today for expert legal advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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