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 is not always the most appropriate leave for medical appointments.
In Akyra’s experience, many businesses question if an employer can insist an employee schedule their medical appointments outside work hours? Read on to find out what is expected as well as how this applies when someone is on workers compensation.
Understanding personal leave legislation
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.
Determine if the medical appointment is urgent or pre-arranged
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 in relation to that employee. 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 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.
What is expected while on workers compensation?
Sometimes employee’s may be on ‘suitable duties’ and see their doctor on company time. This may mean finishing their shift early or leaving during the day and coming back. The impacts of this need to be considered at the time of establishing a return to work plan.
The relevant state workers compensation regulator may specify in the return to work guidance when an employee is expected to attend a medical appointment.
Return to work plan
If the state workers compensation regulator does not specify details of times an employee will attend treatment; then it is for negotiation between the employee and employer.
Consideration needs to be given to the location of work, treatment, work routines and other relevant factors. A consultative approach is necessary outlining when any treatment should be obtained by employees out of working hours whenever practicable.
A reasonable approach might be that when a worker is not back at work full-time, they seek treatment in their own time. Once they resume full-time employment and, if it is difficult to access medical treatment, then the employer may allow time during work hours to access the treatment.
An effective return-to-work plan is one that allows the employee to access the medical treatment required that enables them to return to pre-injury duties as soon as possible.
Akyra’s key takeaway
An employee is expected to make reasonable efforts to arrange routine medical examinations outside work time. Where this is not possible, some form of leave may be negotiated with the employer – e.g. annual leave or unpaid leave
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to personal leave. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.