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Ask Ed – Claiming Sick Leave for Cosmetic Surgery

Published May 27, 2015 (last updated June 24, 2020) Author: Employsure
Ask Ed Mallett Your Workplace Relations Questions

Hi Ed, I have a staff member that goes to Thailand on a regular basis for 2 weeks at a time. I have been told that while she is away she would like to have cosmetic surgery done. The staff member wants to know if she can use her sick leave to have this done. Please advise as I am unsure if she would be entitled to sick leave.

The answer to this question impacts many employers. With cosmetic surgery becoming more prevalent its a great topic, thank you for being brave enough to ask it!

When speaking with our clients about personal leave, we hear one message loud and clear: our clients want to do the right thing and grant personal leave to their employees where a genuine entitlement exists. However due to the impact of absenteeism on their business, they need to be sure the entitlement exists before granting this leave.

As advisers, we can offer the following from a legal perspective:
–    does the employee have an entitlement to take personal leave?; and
–    has the employee complied with notice and evidence requirements associated with this type of leave?

Under the Fair Work Act, personal leave can be taken when an employee is unfit for work due to a personal illness or injury. It can also be taken to provide care or support to a member of their immediate family or household who is suffering a personal illness or injury, or is affected by an unexpected emergency.

There are, however, conditions on the taking of this leave. The employee is required to provide notice of their absence to their employer as soon as practicable. Second, the employee must support their absence with evidence (most commonly, a medical certificate) that would satisfy a reasonable person they were unfit for work.

In majority of cases, the entitlement to personal leave is clear cut: the employee is clearly suffering from an illness that renders them unfit for work, and has provided the necessary notice and documentation in support of this.

In other cases, like cosmetic surgery, it can appear harder to determine whether the entitlement is there. The employee might be suffering from an illness they chose not to immunise against, an injury sustained outside of work time, or undergoing a procedure that is elective in nature rather than medically necessary.

Legally though, there is no real distinction between the reasons the employee may be unfit for work. The key criteria is that the employee is in fact medically unfit for duties.
In this scenario, your employee will have a legal entitlement to personal leave for the period following the surgery if this does indeed leave her unfit for duties and she can provide reasonable evidence of this.

Any absence prior to the surgery (including the time spent travelling to Thailand) should be taken as annual leave. If the employee does not have sufficient annual leave to cover this period, you may have the option of refusing to provide paid leave to the employee.

The employee in hindsight is providing you notice in advance of her absence, as a result you can plan around it and ensure your business can continue to operate smoothly.

If you would like any further advice on leave entitlements please call our advice line on 1300 651 415. Or if you have a curly question you would like to ask me click here.

About Employsure

Employsure is Australia’s largest workplace relations specialists. We take the complexity out of workplace laws to help small business employers protect their business and their people.

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