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The following Q&A is for employees whose employment is affected by their positive diagnosis of COVID-19. This information is accurate as at 20 September 2022. Updates will be provided as further information becomes available.
This Q&A contains information of a general nature only and is not a substitute for professional legal advice. You should obtain legal advice from a lawyer about your particular situation before acting on any of the following information. This Q&A is designed for Victorian and national system employees in Tasmania and Queensland only. If you are not a Victorian employee or a Queensland or Tasmanian national system employee, you should obtain specialist legal advice about your case as soon as possible.
Your employer can ask you to provide a medical clearance if that is lawful and reasonable in your situation. For example, if a medical clearance is needed to protect you or your co-workers’ health and safety, then it is likely to be reasonable.
It might not be reasonable for your employer to ask you to provide a medical clearance if this is not necessary to comply with health and safety obligations, for example, you are not required to self-isolate, or you are healthy and able to work.
For more information contact JobWatch or the Fair Work Ombudsman.
It is unlawful for an employer (or a principal) to discriminate against an employee (or an independent contractor) because of a physical disability. Both state and federal laws protect workers against this kind of discrimination.
A physical disability includes a temporary or permanent disability, disease, illness or medical condition. The discrimination may occur on the basis of a disability which you have now, you have had in the past, you are believed to have had or you may have in the future.
Under anti-discrimination laws, employers have an obligation to make reasonable adjustments to accommodate an employee’s disability. However, if the employee still cannot perform the inherent requirements of the job, even with reasonable adjustments, then it may not be unlawful for the employer to discriminate against the employee on the basis of physical disability.
There are also other circumstances when it may not be unlawful for an employer to discriminate against an employee on the basis of a disability. For example, if there is a risk to your (or other people’s) health or safety and the discriminatory measures are needed to protect you or the other people in your workplace.
People with a personal connection with someone with a physical disability (e.g. family members, friends or co-workers) may also be protected from being discriminated against because of that relationship or connection.
If you feel that you have been discriminated against, you may be eligible to make a claim in more than one jurisdiction. However, usually you are only entitled to make one claim, so you need to carefully consider which jurisdiction is best for you.
To help you decide which claim is best for your particular circumstances, you may contact the following agencies or consult their websites to understand more about their processes and the laws that govern their particular jurisdiction:
It is unlawful for an employer to take adverse action against an employee because they exercised a workplace right, which includes their right to use their leave entitlements.
If you feel that you have been treated adversely because of your use of sick leave, you may be eligible to make a General Protections Dispute – Non-Termination claim. You have 6 years to make this claim.
If your employment has been terminated because of your use of sick leave, you may be eligible to make an unfair dismissal or General Protections Dispute – Termination claim. You have twenty-one (21) days to make these claims.
For more information about these legal options, contact JobWatch or the Fair Work Commission.
There are a number of different leave and flexible work options available, depending on your eligibility and circumstances:
There are different government support payments available if you can’t earn any income whilst sick, depending on your circumstances, such as the Pandemic Leave Disaster Payment. Check your state or territory’s Department of Health website for more information, or contact Services Australia. Some Victorian workers also have access to the Sick Pay Guarantee – see the Victorian Government website for more information.
Under anti-discrimination laws, employers have an obligation to make reasonable adjustments to accommodate an employee’s disability, with long-term COVID-19 impacts included as a disability. Depending on your work circumstances, these reasonable adjustments might include changing the location of your work to working from home or changing your work hours.
However, if the employee still cannot perform the inherent requirements of the job, even with reasonable adjustments, then it may not be unlawful for the employer to discriminate against the employee on the basis of disability. See above (I think I’ve been discriminated against because I have had COVID-19. What can I do about it?) for your legal options if you believe you have experienced discrimination.
If you are unable to continue working, you can consider different leave options available, depending on your eligibility and circumstances:
Taking paid or unpaid leave, rather than leaving your employment permanently, will help you to stay connected to your employer in case you are able to work again in the future.