Can personal leave be used for medical appointments?

Can personal leave be used for medical appointments?
By Paul Munro on 20 July 2017 Is an employee entitled to paid personal leave to attend medical appointments?

This question was recently sent to our Ask an Expert service.

Q We have several employees who have arranged future medical appointments during work hours. These appointments are arranged a number of months in advance. While they relate to an employee’s medical condition the company is questioning whether they are entitled to paid personal leave as their condition does not render them incapable of coming to work. Our view is that personal leave does not include routine medical appointments which could be arranged outside work hours.

Is this interpretation of personal/carer’s leave provisions under the National Employment Standards correct and are there any circumstances which entitle an employee to paid personal/carer’s leave?

A An employee is not necessarily entitled to paid personal leave when attending a routine medical or elective surgery, because illness or injury did not preclude the employee from attending work. This will depend on each individual circumstance. The employer can ask for evidence from the employee to confirm their inability to attend work due to illness or injury.

The after-effects of such a visit or elective surgery may entitle an employee to paid personal leave. For example, if an employee visits a dentist to have teeth filled or other ‘cosmetic’ procedure, the employee is not entitled to personal leave because the employee would not be able to establish his or her inability to attend work that day. However, an employee who has a wisdom tooth removed or other major dental surgery would be entitled to claim personal leave for the following day.

Likewise, an employee who attends a dentist because of toothache or similar illness would be entitled to personal leave because the nature of the illness would prevent the employee from attending work that day.

Unexpected emergency – carer’s leave

An employee could qualify for paid carer’s leave when required to attend a medical appointment where a member of their immediate family or immediate household is in their care. For example, an employee having to take a sick child to the doctor’s would qualify for paid carer’s leave as it is providing ‘care or support’ to a member of the employee’s immediate family.

If this happens during the day it could also be regarded as an ‘unexpected emergency’ and paid carer’s leave would apply to that part of the day the employee is absent.

The carer’s leave requirement within the National Employment Standards provides for “care or support” (that is, one or the other). Further, such leave is not tied to the incidence of illness but can apply to an illness or an injury or to an emergency situation affecting the family or household member.

This means an employee may elect to use personal/carer’s leave to provide “support” only to a family or household member whom is affected by an emergency situation. That is, without reference to illness and injury. See Garuccio v WP Crowhurst Pty Ltd t/as Solver Paints [2010] FWA 9595 (21 December 2010).

The Federal Circuit Court determined that an employee who needed to collect her primary school child from school because a friend could not pick up the child as usually arranged was an ‘unexpected emergency’ for the purposes of paid personal/carer’s leave. See Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 (9 August 2013).

The bottom line: An employee is not usually entitled to paid personal/carer’s leave to attend a medical appointment but may be entitled to leave as a consequence of attending the medical appointment.
Need more help with WHS/OHS management?

Australian Business Consulting and Solutions has a dedicated team of WHS/OHS experts who can assist you with your specific WHS/OHS issues and problems. If you would like a free and obligation-free initial assessment of what you require in terms of professional assistance, you can obtain more information from our website.


No comments yet. Be the first.