The inevitabilities of ordinary life anticipate that employees will, from time to time, request leave from their employer to attend medical appointments or undergo medical procedures. However, personal leave will not always be suitable for all medical appointments and procedures.
The Fair Work Act 2009 (Cth) makes it clear that personal leave can only be taken where an employee is not fit for work because of their own personal illness or injury (section 97(a)). Whether personal leave is appropriate will depend on each individual circumstance, with the employee’s fitness for work being the determining factor.
Where an employee is required or wishes to attend medical appointments or undergo medical procedures without prior arrangement, the sudden onset of the illness or occurrence of injury that is the subject of these visits may clearly warrant the taking of personal leave. The same can generally be said about elective surgeries, where illness and injury from post-operative recovery will typically render an employee unfit for work.
Uncertainties may arise, however, where medical appointments or procedures don’t have such urgency. Where an employee wishes to attend a pre-arranged medical appointment, their entitlement to take personal leave resides in them being unable to work because of their personal illness or injury. In circumstances where, for example, an employee wishes to attend a pre-arranged visit to a specialist or any pre-arranged medical consultation or allied health visit (such as physiotherapy), mere attendance to these appointments would not, in and of themselves, justify taking personal leave.
There may be circumstances in which these appointments are attended in the context of the employee being unfit for work and/or an assessment being made by a medical practitioner that the employee is as such. Where such circumstances exist, personal leave may be appropriate. Without any assessment that an employee is unfit for work, a medical practitioner’s mere recommendation or referral to arrange a medical appointment is immaterial to whether personal leave may be suitably taken.
In determining whether an employee may take personal leave, employers should refer to any applicable modern award, enterprise agreement or employment contract, which may define an employee’s personal leave entitlement in more favourable terms than the National Employment Standards (NES). Employers should also remain conscious of an employee’s entitlement to carer’s leave in circumstances where an employee is required to care for or support a member of their immediate family or household (section 97(b)). This NES entitlement may apply where the immediate family or household member becomes ill or injured, or is affected by an unexpected emergency.