As NSW and other parts of Australia are plunged into another stay-at-home period due to the Covid-19 outbreak, businesses are once again likely to be feeling the pinch. Whilst many are able to work from home, some employers may look to ask employees to take annual leave if the company has ceased operations as a result of the lockdown. This article will address whether an employer can force an employee to take annual leave during lockdown, and the obligations of both parties in these circumstances.

How does annual leave work?

Annual leave allows an employee to be paid whilst having time off work. Generally, full time and part-time employees are eligible for a minimum of 4 weeks annual leave based on their ordinary hours of work, however the courts have also recently recognised a casual worker’s right to annual leave in some circumstances. Generally, annual leave is taken upon agreement between an employer and the employee. However, in unusual or extenuating circumstances, your employer may direct you to take annual leave.

Can my boss force me to take annual leave during lockdown because of COVID-19 restrictions?

In short, yes. An employer can direct employees to take some leave in limited circumstances such as when the business shuts down. Whilst this is common during the Christmas/New Year period, business have been extending this principle when COVID-19 restrictions force business shutdowns.

However this directive must be considered reasonable. Factors considered when determining reasonableness include:

  • Needs of the employee and the employer’s business
    • Agreed arrangements with the employee
    • Custom and practice of the business
    • Timing of the direction or requirement to take leave
    • Length of the period of notice given

Therefore, employers should be mindful to give notice as soon as practicable if such a directive will be issued to employees and specify the period for which they will be required to take leave. Employers can also ask you to take annual leave where you have an excessive annual leave balance, which is generally 8 weeks or more of accrued leave.

What if my employer is covered by JobKeeper?

If your employer is an eligible JobKeeper recipient, they can ask you to take paid annual leave, provided you keep a balance of at least two weeks paid leave. Generally, if your employer requests you to take annual leave that will not deplete your paid leave balance below two weeks, this is not unreasonable under the COVID-19 scheme. If you believe that the request is unreasonable, you can refuse to take leave, however this may not be advantageous to you. It is important to consider practical circumstances such as your working relationship with your employer, and speak to them about any concerns in the first instance.

Contact Etheringtons Solicitors

We represent both employers and employees in the changing landscape of the COVID-19 pandemic, so if you or your organisation needs further advice or assistance in relation to annual leave or other workplace entitlements, please call Etheringtons Solicitors on (02) 9963 9800 or fill out a contact form.