An employee at your practice has asked to take a day of carer’s leave so she can take her eight-year old daughter (who has broken her arm) to a check-up appointment at the nearest hospital. Is the employee entitled to paid carer’s leave for whole day, or just for travel time and the time taken for the appointment?
Section 97 of the Fair Work Act 1999 says that an employee is entitled to take paid carer's leave to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of:
(a) a personal illness, or personal injury, affecting the member; or
(b) an unexpected emergency affecting the member.
As the daughter’s broken arm is a personal injury affecting a member of the employee’s family, the employee is entitled to paid carer’s leave to take her daughter to the medical appointment. It would be different if the daughter was attending a routine appointment (for example, a routine dental check-up). In the case of routine appointments, there is no entitlement to paid carer’s leave.
The second issue raised in this scenario is the amount of paid carer’s leave that the employee may take. The employee is only allowed to take leave to care for her daughter due to her illness or injury. This might be just the travel and appointment time, or it might be additional time if, for example, the child is unable to attend school due to her broken arm.
In this instance, the practice is entitled to request evidence regarding the daughter’s broken arm.
In another common situation, your employee has asked to take time off to attend a specialist appointment. You wonder if the employee is entitled to paid sick leave?
Under the Fair Work Act 1999, an employee may take paid sick leave if the leave is taken because the employee is not fit for work because of a personal illness or personal injury affecting the employee. An employer can request evidence that the employee is unable to work due to an illness or injury.
An employee is not strictly entitled to take paid sick leave to attend a medical appointment unless the employee is unable to work because of an illness or injury. More information is available on the Fair Work website.
It may not be possible for employees to schedule medical appointments outside of work hours. In addition, employees can perceive that their employers are acting unfairly or unreasonably if they strictly apply the law in relation to medical appointments. This can lead to a decline in productivity, performance issues and even resignation.
For this reason, many employers offer flexibility to allow employees to attend medical appointments, such as swapping days or making up the time spent attending appointments. Some employers also provide paid leave for medical appointments.
Another way to minimise any employee concerns is to be upfront and outline your policy about medical appointments in the employment policy, and to make employees aware of the policy.
It is important that full-time and part-time employees are treated consistently in terms of paid sick leave and attending medical appointments, to avoid any risk of a discrimination claim. For example, it could be considered discriminatory to allow a full-time employee to take paid sick leave to attend a medical appointment but not a part-time employee.
Avant’s Practice Medical Indemnity Insurance Policy* provides cover for defending complaints that arise from an employee dispute, including complaints under anti-discrimination or equal opportunity legislation. This includes the legal costs of defending the practice and its employees against allegations and complaints.
By: Sonya Black, Special Counsel – Employment Law, Avant Law – QLD
This article was oringally published on avant.org.au on Nov 14, 2017