Sick leave for elective surgery?

[Moz]

Hi guys, just wondering what the laws are around using sick leave for elective surgery.

Is it legal to adopt a policy that says sick leave can be taken only at the discretion of the employer if it is for elective surgery?

[Cottoneyes]

Fine line, the award makes mention of leave being available if the employee is not fit for work due to a personal injury or illness.

Might have a discrimination case, how is someone not being available due to surgery really any different from someone else that consumes extremely high levels of cholesterol willingly in their diet and has high blood pressure issues requiring time off, or a 2 pack a day smoker etc

[Moz]

Yes, it's definitely a curly one.

The problem is that "elective surgery" covers a lot of things, and just because it's elective doesn't mean you can just not have it done. It may mean it's just not life threatening so not an emergency.

Who is to be the judge of when such surgery should be done.

I know someone who had ovarian cysts removed recently. She had been waiting for the op for about 12 months and they even changed the date a few times. She definitely had to have the op, it was just a matter of when.

On the flip side of course, a face lift is also "elective surgery".

And what if there are complications and the individual ends up back in hospital or takes much longer to recover than anticipated, which often happens.

I'd love to know how people deal with this from a policy perspective.

[jonthebass]

Okeys. I have a member of staff who will be taking time off (8 - 12 weeks) through elective surgery. She is dreadfully overweight and keeps breaking seats. We have tactfully tried to encourage her in a weight loss program but she fails. She has to take one month off to quit smoking before they will operate. The operation is to remove 50% of her stomach so that she can't shovel the food in like she does. If the surgeons are not happy with her respiratory system after 4 weeks off the tabs then she wil have to wait a further 4 weeks before they will re test. She is a very heavy smoker. I'm all for helping her do this but am I really meant to pay for a temp, pay for her for no known amount of time. What is the ruling on this.

[Qld IR Consultant]

To be honest everyone I think it comes down to morale and ethics. Are you really going to begrudge an employee time off for surgery, particularly an overweight individual who is trying to change, for the sake of some leave and $$??.....I realise there are procedures out there that are non-life threatening and either aren't necessary or can wait without having adverse effects on the individuals health, but do you really want to put roadblocks in front of people for the sake of policy and procedure?.....Give them the benefit of the doubt and support them, you may find they will return a happier and more productive employee, and if not, then deal with the issues be they performance or behaviour........

[jonthebass]

To be honest everyone I think it comes down to morale and ethics. Are you really going to begrudge an employee time off for surgery, particularly an overweight individual who is trying to change, for the sake of some leave and $$??.....I realise there are procedures out there that are non-life threatening and either aren't necessary or can wait without having adverse effects on the individuals health, but do you really want to put roadblocks in front of people for the sake of policy and procedure?.....Give them the benefit of the doubt and support them, you may find they will return a happier and more productive employee, and if not, then deal with the issues be they performance or behaviour........

Sadly I doubt if she will return happier and more productive as she is naturally lazy but we put up with her.
Money is tight and I might have to lay her off or put on restricted hours. If she was a diamond member of staff I wouldn't be posting this

[Qld IR Consultant]

Wow....well if you "put up with her" it may have been a case of she should have been performance managed out of the business long ago. Sack her now or restrict her access to surgery and your legal counsel will have some work to do......

[Tiger]

Heavens above. Sick leave is available for people who need it - elective surgery for whatever ailment is a medical procedure and it would never occur to me to refuse it. What is happening in this world? If they use up their S/L (or PC/L) then give them option to use their A/L if they wish to be paid (or even LSL if they have it) or it's Leave without Pay. If someone is on LWOP then you are not paying them so a temp is not costing you double. Using up leave entitlements actually aids the company as you don't end up paying it out at termination at a higher rate than it was accrued at.
I agree with Qld IR Consultant, we need to have more heart, get tougher on non-performers and deal with those as soon as signs begin. Seems to me many employers seems to lack the guts to performance manage these days.
Tiger

[Moz]

...give them option to use their A/L if they wish to be paid (or even LSL if they have it) ...

I don't think you can do that with Long Service Leave, not legally anyway

[Tiger]

Did it once. Employee was having lapband surgery; was what you might call an 'abuser' of S/L ie took her one day every month! had no leave and was desperate for money. It's back in the early 90s but I do recall that on being presented with the facts, she asked to take the LSL so she could be paid - we were happy to oblige.
Tiger

[Moz]

Did it once... , she asked to take the LSL so she could be paid - we were happy to oblige.
Tiger

Actually it depends on where you are, because LSL is governed by State legislation.

In Victoria it is illegal to cash out LSL.

BUT it can be taken in advance (before the entitlement has accrued) if both parties agree. If the employment is then terminated before the long service leave is accrued, the employer may recover the amount of any advance payment.

Again, this is in Victoria, I don't know what applies in other States.

[IndustrialResources]

Lets get back to basics here.

It's 'Personal Leave' not sick leave. It's an entitlement protected by the NES, and unlike annual leave it cannot be refused by an employer on any grounds and an employee can take a period of personal leave if any of the conditions of section 97 of the Fair Work Act 2009 are met.

In this instance, the employee, (regardless of the managers personal views of the individuals work ethics) meets 97(a) because they will not be fit for work due to a personal illness (or injury following surgery) that is/will be effecting the employee.

The only control an employer may have in this situation is to request a medical certificate (or stat. dec.) to enable to payment of any accrued personal leave to the employee for the duration of the leave.

If you have received a medical certificate, you are out on a limb to challenge medical advice that it was not a personal illness or injury.

[hr63]

you are 100% correct industrial resource.

[bullswool]

Who is to be the judge of when such surgery should be done.

A Doctor.

A Medical Certificate stating the employee is unfit for work is the evidence required for an employer to pay sick leave benefits.
Unless you are a doctor yourself, I don't think you are in a position to chellenge the validity of the Medical Certificate.