If you get sick during annual leave, those days are sick leave, not annual leave, under section 89(2) of the Fair Work Act. Tell your employer as soon as you can, give evidence if asked, and the annual leave goes back into your balance.
This guide covers how to claim the days while you are still away, three worked examples over the Christmas and New Year break in NSW (full-time, part-time and a short sick leave balance), what happens when your sick leave runs out, and the one situation where the swap does not work at all: annual leave taken inside unpaid parental leave.
Key takeaways
- Days you are sick or injured during paid annual leave are paid sick and carer's leave. They come off your sick leave balance and the annual leave is restored (s 89(2)).
- The same applies to carer's leave, compassionate leave, paid family and domestic violence leave, and community service absences such as jury duty.
- You must give notice as soon as practicable, which can be after the leave has started, and evidence if your employer asks. If you do not, you are not entitled to the sick leave and the day stays annual leave (s 107(4)).
- Only the days your sick leave balance covers can convert. For the rest, you and your employer can agree to keep it as annual leave or switch to unpaid leave.
- The exception: annual leave taken during unpaid parental leave does not convert, and public holidays inside it are not paid.
What the law says
The rule is a single subsection. It does not say you "may" swap, or that your employer can approve a swap. It says that for the period of the other leave, you are not on annual leave at all.
"If the period during which an employee takes paid annual leave includes a period of any other leave (other than unpaid parental leave) under this Part, or a period of absence from employment under Division 8 (which deals with community service leave), the employee is taken not to be on paid annual leave for the period of that other leave or absence."
Source: Fair Work Act 2009, Compilation No. 73, 7 July 2026, retrieved 5 October 2026.
Section 89(1), the subsection before it, is the public holiday rule, and it is often cited by mistake for sickness. The Fair Work Ombudsman's own page on annual leave when sick or injured gives its legal basis as sections 16, 89(2) and 90.
"Any other leave under this Part" means other leave in the National Employment Standards. In practice that covers:
| Leave taken during your holiday | Does the annual leave come back? | Which balance is used instead |
|---|---|---|
| Sick leave (your own illness or injury) | Yes | Sick and carer's leave |
| Carer's leave (caring for family, or a family emergency) | Yes | Sick and carer's leave |
| Compassionate leave | Yes | Compassionate leave, 2 days per occasion |
| Paid family and domestic violence leave | Yes | Family and domestic violence leave |
| Jury duty or voluntary emergency work | Yes | Community service leave |
| Anything, if the annual leave sits inside unpaid parental leave | No | None, see the exception below |
"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." (Payment for annual leave, updated 10 August 2026.) And: "Compassionate leave and family and domestic violence leave can also be used during a period of annual leave." (Fair Work Library K600459, Taking other periods of leave during annual leave.) Both retrieved 5 October 2026.
How to claim it while you are away
The days do not convert by themselves. Section 107 sets two conditions, and they are the same ones that apply to any sick day.
- Tell your employer as soon as practicable. That can be after the leave has started, so a message from a hotel room on day three is fine. Say how long you expect to be sick: the notice must advise "the period, or expected period, of the leave".
- Give evidence if asked. Your employer can ask for evidence for as little as 1 day, and it has to be evidence that would satisfy a reasonable person. Your award or agreement can set the kind of evidence. Get a medical certificate while you are sick rather than trying to find one afterwards. Our sick leave evidence guide covers certificates, statutory declarations and what your employer is not entitled to know.
- Ask payroll to re-code the days when you are back, so the hours come off your sick leave balance and return to your annual leave balance.
Skip the notice or the evidence and you lose the swap, not the pay. Section 107(4) says you are not entitled to the sick leave unless you comply, so the day simply stays as paid annual leave. Your employer also cannot go the other way: it cannot direct you to take annual leave while you are on sick or carer's leave.
Notice "must be given to the employer as soon as practicable (which may be a time after the leave has started)". Evidence is evidence "that would satisfy a reasonable person". "An employee is not entitled to take leave under this Division unless the employee complies with this section." Source: Fair Work Act 2009, Compilation No. 73, 7 July 2026. Also Fair Work Ombudsman, Payment for annual leave: "An employer can't direct an employee to take annual leave while they're taking sick or carer's leave." Both retrieved 5 October 2026.
Worked example: Christmas and New Year 2026-27
Mia works full-time in Sydney: 38 hours, Monday to Friday, 7.6 hours a day. She books annual leave from Monday 21 December 2026 to Friday 8 January 2027, which is 15 weekdays. Three of them are NSW public holidays: Christmas Day (Friday 25 December), the additional Boxing Day holiday (Monday 28 December, because Boxing Day falls on a Saturday) and New Year's Day (Friday 1 January 2027). So her booking costs 12 days, or 91.2 hours, of annual leave.
She comes down with the flu and is sick from Tuesday 29 to Thursday 31 December. She texts her manager on the Tuesday morning and sees a GP that afternoon.
| Dates | What the day is | Comes off |
|---|---|---|
| Mon 21 to Thu 24 Dec | Annual leave, 4 days | Annual leave, 30.4 hours |
| Fri 25 Dec | Christmas Day, public holiday | Nothing, paid as a public holiday |
| Sat 26 Dec | Boxing Day, not one of her working days | Nothing |
| Mon 28 Dec | Additional Boxing Day public holiday | Nothing, paid as a public holiday |
| Tue 29 to Thu 31 Dec | Sick, with a medical certificate | Sick leave, 22.8 hours |
| Fri 1 Jan | New Year's Day, public holiday | Nothing, paid as a public holiday |
| Mon 4 to Fri 8 Jan | Annual leave, 5 days | Annual leave, 38 hours |
| As booked | After the sick days | |
|---|---|---|
| Annual leave deducted | 91.2 hours (12 days) | 68.4 hours (9 days) |
| Sick leave deducted | 0 hours | 22.8 hours (3 days) |
| Public holidays, paid and not deducted | 3 | 3 |
| Annual leave back in her balance | 22.8 hours |
Fair Work Ombudsman, Public holidays (NSW: "Friday 25 December: Christmas Day; Saturday 26 December: Boxing Day; Monday 28 December: Additional public holiday for Boxing Day") and Fair Work Act s 115(1)(a)(i) for 1 January. Retrieved 5 October 2026. See every date on NSW public holidays 2026 and 2027.
Part-time? Only your rostered days count
Sick leave can only replace annual leave on a day you would have worked. Ana works part-time in Newcastle, 22.8 hours a week on Mondays, Tuesdays and Wednesdays (7.6 hours each), and books the same three weeks. Only 9 of the days are rostered days. Christmas Day and New Year's Day are Fridays, which she never works, so she is not paid for them: the Fair Work Act pays a public holiday only for the ordinary hours you would have worked that day. Monday 28 December is one of her days, so it is a paid public holiday.
| Step | Ana (Mon to Wed, 7.6 hours a day) |
|---|---|
| Rostered days in the booking | 9 |
| Public holidays on a rostered day | 1 (Mon 28 Dec) |
| Annual leave as booked | 8 days, 60.8 hours |
| Sick days on rostered days | Tue 29 and Wed 30 Dec, 15.2 hours of sick leave |
| Thu 31 Dec (sick, but not rostered) | Nothing: no annual leave was being used that day |
| Annual leave after the swap | 6 days, 45.6 hours |
| Annual leave restored | 15.2 hours |
"If a public holiday falls during a period of paid leave (for example, annual leave or sick leave), the employee has to be paid for the public holiday." The same page gives the example of a part-time employee who is not paid for a public holiday on a day he does not normally work. Not working on public holidays, updated 10 August 2026, retrieved 5 October 2026. Fair Work Act s 116: paid "at the employee's base rate of pay for the employee's ordinary hours of work on the day".
When your sick leave balance runs short
The swap is limited by your sick leave balance. Only the hours your balance covers become sick leave. For the rest, the Fair Work Ombudsman says you and your employer can agree what happens: the days can stay as annual leave, or you can switch to another type of leave such as unpaid leave. Without an agreement, they stay as annual leave.
Take Mia again, but this time with only 15.2 hours (2 days) of sick leave left when she gets the flu.
| Sick day | Full balance (Mia above) | Only 15.2 hours of sick leave left |
|---|---|---|
| Tue 29 Dec | Sick leave | Sick leave |
| Wed 30 Dec | Sick leave | Sick leave (balance now 0) |
| Thu 31 Dec | Sick leave | Annual leave, unless she and her employer agree otherwise |
| Annual leave deducted | 68.4 hours (9 days) | 76 hours (10 days) |
| Annual leave restored | 22.8 hours | 15.2 hours |
Not sure what your balance is? A full-time employee builds 76 hours of sick and carer's leave a year. The accrued sick days calculator works out what you have banked from your start date and hours.
"The amount of leave taken is deducted from the employee's sick and carer's leave balance." And: "What if the employee doesn't have enough sick leave? An employee can come to an agreement with their employer. For example, they may agree the employee can continue with their annual leave or start a different type of leave such as unpaid leave." Taking other periods of leave during annual leave, retrieved 5 October 2026.
Using annual leave when you have run out of sick leave
This is the reverse question: you are at home sick, not on holiday, and your sick leave balance is empty. You can ask to use annual leave instead, and you are paid as normal for those days. It works like any annual leave request: the leave is taken for a period you and your employer agree (s 88(1)), and your employer must not unreasonably refuse to agree (s 88(2)).
- It is your request, not your employer's call. Your employer cannot direct you to take annual leave while you are on sick or carer's leave.
- Caring for someone else? Full-time and part-time employees can take unpaid carer's leave once they have no paid sick or carer's leave left. That covers caring for a family or household member, not your own illness.
- A long illness. The Fair Work Ombudsman says employees who use paid sick leave for the whole absence cannot be dismissed because of that absence, however long it lasts. Section 352 of the Act protects employees who are temporarily absent because of illness or injury of a kind the regulations prescribe.
- Casuals have no paid annual or sick leave to swap. They get 2 days of unpaid carer's leave per occasion.
Fair Work Act 2009 s 88: "(1) Paid annual leave may be taken for a period agreed between an employee and his or her employer. (2) The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave." s 352: "An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations." (Compilation No. 73, 7 July 2026.) Fair Work Ombudsman, Sick and carer's leave and Long periods of sick leave, both updated 10 August 2026. All retrieved 5 October 2026.
Public holidays inside your leave
Public holidays follow their own rule, section 89(1): a public holiday inside your annual leave is not annual leave. It is paid as a public holiday and is not deducted from your balance. The same is true when the holiday falls inside a period of sick leave. Four details catch people out:
- You are only paid for the holiday if it falls on a day you would normally work, as Ana's Fridays show.
- If you are rostered to work on a public holiday that is not one of your usual days and you call in sick, you are not paid for that day.
- The rule may not apply where the public holiday falls during leave granted above the NES minimum. Check your award or agreement.
- Annual leave inside unpaid parental leave is different again: the public holiday is not paid (next section).
To see how many days a given break really costs in your state, use the annual leave planner. If your employer closes over Christmas and directs you to take leave, see Christmas shutdown and directed leave.
"If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday." Fair Work Ombudsman, Not working on public holidays: "The public holiday isn't counted as annual leave or sick leave under the NES." Retrieved 5 October 2026.
The exception: annual leave during unpaid parental leave
Section 89(2) carves out unpaid parental leave in its own words, and section 79(2) closes the door from the other side: while you are on unpaid parental leave you cannot take paid personal/carer's leave. So if you take a block of annual leave inside a period of unpaid parental leave and get sick, the sick days stay as annual leave. Compassionate leave is unavailable then too, unless the occasion is the stillbirth or death of the child.
Run Mia's Christmas booking through that situation: the same 15 weekdays, taken as annual leave in the middle of her unpaid parental leave.
| Ordinary annual leave (Mia above) | Annual leave inside unpaid parental leave | |
|---|---|---|
| Sick Tue 29 to Thu 31 Dec | Becomes 22.8 hours of sick leave | Stays annual leave |
| Public holidays (25 Dec, 28 Dec, 1 Jan) | Paid, not deducted | Not paid |
| Annual leave deducted | 68.4 hours | 91.2 hours |
For what you are entitled to when that leave ends, see returning to work after maternity or parental leave.
"While an employee is taking unpaid parental leave, the employee is not entitled to take: (a) paid personal/carer's leave; or (b) compassionate leave, unless the permissible occasion is the stillbirth or death of the child". Fair Work Ombudsman, Accruing and taking other leave during parental leave (updated 27 July 2026): "If an employee is taking paid annual leave during their unpaid parental leave and a public holiday falls during this period, the employee isn't paid for the public holiday." Retrieved 5 October 2026.
What you are paid for the swapped days
Swapping changes the type of leave, so it can change the pay. Paid personal/carer's leave is paid at your base rate of pay for your ordinary hours (s 99), and the base rate excludes loadings. Annual leave loading, where you get it, comes from your award or agreement and is attached to annual leave. So the converted days are paid without loading, and the loading follows the restored annual leave hours to whenever you take them. Check how your award words its loading clause.
| Mia's 22.8 hours at a $35.00 base rate | Amount |
|---|---|
| Paid as sick leave (22.8 x $35.00) | $798.00 |
| 17.5% loading not paid on those days | $139.65 |
| Loading paid later, when she takes the 22.8 restored hours as annual leave (if her award pays 17.5%) | $139.65 |
Fair Work Act 2009 s 99: paid personal/carer's leave is paid "at the employee's base rate of pay for the employee's ordinary hours of work in the period" (Compilation No. 73, 7 July 2026). Fair Work Ombudsman, Payment for sick and carer's leave: base pay rate excludes loadings. Loading is set by "Awards and enterprise agreements" (Payment for annual leave). Retrieved 5 October 2026.
See how much sick leave you have to swap with the sick leave calculator, and what the restored hours are worth with the Annual Leave Calculator Australia.
Sick during annual leave: questions
Can I get my annual leave back if I get sick on holiday?
Yes, for the days you were sick and would otherwise have been on paid annual leave, as long as you have enough sick leave, tell your employer as soon as practicable and give evidence if asked. Those days come off your sick and carer's leave balance instead.
Which section of the Fair Work Act covers being sick on annual leave?
Section 89(2). Section 89(1) is the separate rule for public holidays that fall during annual leave.
Do I need a medical certificate if I get sick on annual leave, even overseas?
Only if your employer asks for evidence, which it can do for as little as one day. The Act does not name a document: the test is evidence that would satisfy a reasonable person, and your award or agreement can set the kind of evidence required. The practical advice is to get a certificate while you are sick.
Can I tell my employer after I get back?
The notice has to be given as soon as practicable, and that can be after the leave has started. Waiting until you are home when you could easily have sent a message earlier risks failing that test, and then the days stay as annual leave.
What if I do not have enough sick leave to cover it?
Only the hours your balance covers convert. The rest stays annual leave unless you and your employer agree on something else, such as unpaid leave.
Can I use annual leave when I have run out of sick leave?
Yes, if your employer agrees, and it must not unreasonably refuse a request for annual leave. It cannot make you use annual leave while you are on sick leave.
Can my employer make me use annual leave while I am sick?
No. The Fair Work Ombudsman says an employer cannot direct an employee to take annual leave while they are taking sick or carer's leave.
Does a public holiday during my annual leave or sick leave come off my balance?
No. It is paid as a public holiday and not counted as annual leave or sick leave, provided it falls on a day you would normally work.
Does my holiday get longer when the days are swapped back?
Not automatically. Section 89(2) changes which balance the days come out of. Annual leave is taken for a period you and your employer agree, so whether your return date moves is something to agree with your employer.
I took annual leave during unpaid parental leave and got sick. Can I swap it?
No. Section 89(2) excludes unpaid parental leave, and section 79(2) says you cannot take paid personal/carer's leave while on unpaid parental leave. Public holidays inside that annual leave are not paid either.
Fair Work Act 2009 (Cth), Compilation No. 73, 7 July 2026 (C2026C00355): ss 79(2), 88, 89(1), 89(2), 99, 107, 115, 116, 352. Fair Work Ombudsman: Payment for annual leave; Notice and medical certificates; Not working on public holidays; Accruing and taking other leave during parental leave; Taking annual leave. Fair Work Library K600459.
Author & reviewer
Sarah has spent over a decade advising Australian SMBs on Fair Work, NES compliance, and payroll. Based in Sydney, she has worked across hospitality, retail and professional services.