3 common questions about sick leave answered

Personal/carer’s leave, informally referred to as ‘sick leave’, can be accessed by employees in a variety of situations. Understanding what these situations are, and therefore when you must approve personal/carer’s leave requests, is integral for upholding employee workplace rights.

Under the Fair Work Act 2009 (Cth) (Act), permanent employees may take paid personal/carer’s leave for the following reasons:

1. because the employee is not fit for work due to a personal illness or injury; or
2. to provide care or support to a member of their immediate family or a member of their household who requires care or support because of a personal illness or injury affecting them or because of an unexpected emergency.

Casual employees don’t have a right to access paid personal leave, but are entitled to two days unpaid carer’s leave for each occasion where a member of their immediate family or household requires care or support because of a personal illness or injury or because of an unexpected emergency.

Despite the clear definition outlining the times that personal/carer’s leave can be taken, employers are commonly confronted with situations that may cause some confusion!

To assist in tackling these tricky situations, we’ve answered the three most frequently asked questions about sick leave entitlements.

Question 1: Can sick leave be used for a pre-booked surgery?

Answer: Yes.

If an employee is unfit to perform work due to a pre-booked surgery, this fits the definition of personal/carer’s leave under the Act. However, appointments or consultations that occur before the procedure or surgery may not meet the definition of personal/carer’s leave, given the employee remains fit to perform work throughout that time (unless it is the case that the employee is unfit to attend work due to the illness or injury which is the topic of the consultation). Hence, to attend appointments or consultations, employees will be required to use their annual leave.

To bring this to life, we have included the example below:

Your employee, Jim, is having elective surgery in a month. He needs to attend a consultation with his surgeon the day before the surgery to discuss the procedure. This consultation doesn’t fit the definition of personal/carer’s leave under the Act, therefore, annual leave must be utilised for this absence. Conversely, the surgery and following recovery period do meet the definition, hence personal/carer’s leave can be utilised for those absences.

Remember, if an employee makes a personal/carer’s leave request, you can ask that they provide medical evidence to confirm that they’re unfit for work throughout that time.

Question 2: Can carer’s leave be used to care for a sick partner?

Answer: Yes.

Carer’s’ leave can be used by an employee when providing care or support to a member of their immediate family or household. The definition of ‘immediate family’ is broad and generally includes the employee’s:

• spouse;
• de facto partner;
• child;
• parent;
• grandparent;
• grandchild; or
• sibling.

It will also include the child, grandparent, grandchild or sibling of the employee’s spouse or de facto partner.

Despite this broad definition, when strictly read, it doesn’t extend to the employee’s partner, unless they’re in a de facto relationship. However, assuming the employee lives with their partner, the partner is a member of the employee’s household and the employee can utilise carer’s leave when taking care of them due to an illness or injury.

Question 3: Can I question or dismiss a medical certificate?

Answer: It depends.

Typically, if a medical certificate has been provided by a qualified medical practitioner, employers can’t question or disregard the valid, expert assessment it provides. However, employers may question a medical certificate if there’s evidence that suggests the employee wasn’t actually ill or injured. Such evidence may include the certificate appearing to be fraudulently altered, backdated or inconsistent with other evidence (such as the employee appearing to be well because you saw a picture of them at a footy match on the day they submitted a medical certificate stating they were suffering from an illness and unfit to attend work).

Remain compliant with Citation HR

Our HR software has a library of policies, documents, and templates so you can ensure you remain compliant when creating a sick leave policy for employees. Even better, our team of HR experts can help tailor workplace policies for your business via our HR Advice Line.

If any of this information has raised questions about sick leave or you have another workplace matter you need assistance with, please reach out to our friendly team for a confidential, no-obligation chat.

About our author

Carla Novacevski is a Workplace Relations Consultant based at Citation HR’s Melbourne Office. In her role, Carla tends to client queries via the HR Advice Line. She is currently completing a Bachelor of Commerce and Law, majoring in Accounting, and is passionate about expanding her knowledge through a variety of placements in multiple areas of law.