Employees may be able to use paid sick leave for elective or cosmetic surgery in Australia. Whether leave applies usually doesn’t depend on whether the procedure was planned, voluntary, or cosmetic.
The key issue is whether the employee is genuinely unable to work because of a personal illness, injury, procedure or recovery period.
- Elective or cosmetic surgery can still qualify for paid sick leave.
- Planned procedures don’t automatically have to be taken as annual leave.
- What matters most is whether the employee is unfit to work due to illness, injury, or recovery.
- Employers can ask for reasonable evidence showing the employee was unfit for work.
- Routine medical appointments don’t automatically count as sick leave if the employee is still fit to work.
- Always assess leave requests based on the employee’s actual ability to work during recovery.
Can employees use paid sick leave for elective surgery?
Yes. An employee may be able to use paid personal leave for elective surgery when they are unable to work due to a personal illness or injury.
The fact that surgery was planned does not, by itself, prevent an employee from accessing sick leave.
A pre-arranged elective procedure can still be covered when the employee is unfit to work due to personal illness, injury, surgery, or recovery.
Can employees use sick leave for cosmetic surgery?
Cosmetic surgery isn’t automatically excluded from paid personal leave simply because it’s elective.
In AWU v Cement Australia [2025] FWC 137, an employee sought paid sick leave for elective knee surgery. The employer was allowed to refuse payment, but only because of its enterprise agreement, which gave unlimited sick leave above the NES and let the employer stop paying once it had formally counselled an employee about high leave use.
However, the Commission said the elective nature of surgery is irrelevant under the NES, and that sick leave for elective cosmetic surgery is no different from sick leave for a burst appendix.
Employers should consider whether:
- The employee is unable to work due to illness, injury, surgery, or recovery.
- The employee has provided the required notice.
- Appropriate evidence has been supplied if requested.
- The employee has sufficient accrued paid personal leave.
This isn’t a moral or subjective decision. The relevant issue is whether the employee meets the requirements for paid personal leave.
What is the actual test for paid personal leave?
Paid personal leave is available to eligible employees when they are unfit for work due to a personal illness or injury.
When assessing leave following elective or cosmetic surgery, employers should ask:
- Is the employee entitled to paid personal leave?
- Are they unable to work because of illness or injury?
- Have they given the required notice?
- If evidence is requested, does it reasonably support the absence?
Whether or not the procedure is medically necessary is not relevant to eligibility.
Does sick leave cover a medical appointment itself?
Attending a medical appointment doesn’t automatically create an entitlement to paid sick leave.
A pre-arranged medical appointment or procedure may be covered by personal leave only if the employee is unable to work due to personal illness or injury. Taking time to attend an appointment isn’t necessarily the same as being unfit for work.
| Situation | Paid personal leave? |
|---|---|
| Employee attends a routine appointment but remains fit for work. | Not automatically |
| Employee undergoes surgery and is medically unfit for work. | May qualify |
| Employee needs several recovery days because they are unfit for work. | May qualify |
| Employee wants time off for a procedure, but remains fit for work. | Personal leave may not apply |
Does the recovery period after surgery count as sick leave?
Recovery time may qualify for paid personal leave if the employee remains unfit for work due to the procedure, a resulting injury, or a related medical condition.
Relevant factors may include:
- Post-operative pain
- Restricted movement or lifting capacity
- Medication that affects concentration, alertness, or the ability to work safely
- Medical directions not to work
- Physical restrictions that are incompatible with the employee’s role
- The nature of the employee’s usual duties
The assessment should be functional: Can this employee perform their job during the recovery period? The same procedure may affect different people in varying ways, so the time they need to recover may also vary.
Can an employer require an employee to use annual leave for surgery instead?
You shouldn’t reclassify the absence as annual leave just because a procedure was elective.
The correct approach is to distinguish between the medically supported period when the employee is unfit for work and any additional non-medical time surrounding the procedure.
Annual leave may become relevant if:
- The employee is not actually unfit for work.
- The employee wants additional discretionary time before or after the medically required absence.
- The employee’s paid personal leave balance has been exhausted, and the parties agree to use annual leave.
- The leave request relates to travel, preparation, or other non-medical time surrounding the procedure.
For example, an employee has surgery on Thursday and provides medical evidence stating they are unfit for work until the following Tuesday. Those medically supported days may qualify for personal leave. If the employee also wants the previous three days off to travel and prepare for the procedure, those additional days may need to be dealt with separately.
What evidence can an employer ask for?
An employer can request evidence even if the employee takes only one day of personal leave. The evidence needs to satisfy a reasonable person that the employee was genuinely entitled to take the leave.
Medical certificates and statutory declarations are common examples. Depending on the circumstances, appropriate evidence may address:
- Whether the employee was unfit for work
- The dates or expected duration of the incapacity
- Any relevant work restrictions required to manage a safe return to work
- Requirements under an applicable award, enterprise agreement, or workplace policy
The evidence request should be reasonable. You shouldn’t ask for proof of medical necessity, only their capacity to work.
Does the employee have to tell their employer what surgery they are having?
Generally, the purpose of evidence is to establish whether the employee is entitled to leave. It’s not about giving the employer unrestricted access to the employee’s diagnosis, detailed medical history, or reasons for choosing a particular procedure.
Employers should usually focus on:
- Whether the employee is fit for work
- How long the employee is expected to be absent
- Any necessary workplace restrictions
- Whether the employee can safely return to their ordinary role or needs suitable duties
Employers should avoid treating a sick leave request as an invitation to investigate why an employee chose a particular medical procedure.
What notice does an employee need to give?
An employee must notify their employer as soon as practicable (this can be after the absence has started) and say how long they expect to be away.
Employees should ideally provide:
- The expected dates of absence
- Any known recovery period
- Notice of changing medical circumstances that affect their return date
- Evidence, if requested
That said, advance notice isn’t a requirement to qualify for personal leave.
Does the employee need to have enough sick leave accrued?
Yes. Full-time and part-time employees accrue paid personal/carer’s leave under the National Employment Standards.
If an eligible employee doesn’t have enough accrued leave to cover the full absence, consider using:
- Leave without pay, with agreement
- Annual leave by agreement
- Other contractual, enterprise agreement, or workplace policy entitlements
Note that casual employees don’t receive paid personal leave under that entitlement.
Can an employer refuse sick leave for cosmetic surgery because it was voluntary?
No. An employer can’t refuse paid personal leave solely because cosmetic surgery was voluntary or elective.
The focus should remain on whether the employee is medically unfit for work and has met the applicable leave requirements.
What if the employer doubts the medical certificate?
If the evidence would satisfy a reasonable person that the employee is entitled to leave, this is usually sufficient to approve sick leave.
However, if you are concerned about conflicting evidence, suspected fraud, the employee’s ability to work, workplace safety, or a return-to-work restriction, you should seek employment law advice. Don’t contact the employee’s treating practitioner without the employee’s written consent.
What if the employee can work from home while recovering?
The central question remains whether the employee is fit for work.
An employee who can’t commute or perform physical duties may be able to perform suitable work from home, depending on their medical restrictions and the nature of their role.
Keep in mind that an employee doesn’t necessarily have to work from home simply because remote work is technically possible. Medical evidence that an employee is unfit for work altogether is different from evidence that limits only particular physical activities.
Can you dismiss an employee who is off recovering from surgery?
Generally, no. It’s unlawful to dismiss an employee because they’re temporarily absent from work due to illness or injury. This applies whether or not the surgery was elective.
The protection usually applies where the employee provides a medical certificate or other evidence and the absence doesn’t go beyond three months, or three months in total over a 12-month period. If the employee is on paid sick leave, the protection continues for as long as that leave lasts, even beyond three months.
Taking sick leave is also a workplace right. Dismissing, demoting or otherwise treating an employee unfavourably because they took it can lead to a general protections claim. These claims are open to employees of any business size, regardless of how long they’ve worked for you.
If an extended absence is affecting your business, get advice before making any decisions about the employee’s role.
What should employers do when an employee requests sick leave for elective surgery in Australia?
Employers should apply the same fair, evidence-based process they would use for any other personal leave request.
- Confirm the employee has given notice and provided the expected absence period.
- Check their personal leave entitlement and available balance.
- Focus on whether they are unfit for work, not whether the procedure was elective.
- Request appropriate evidence if required.
- Check the relevant award, enterprise agreement, and workplace policy.
- Separate medically supported recovery time from additional discretionary time off.
- Avoid requesting unnecessary medical details.
- Apply evidence and leave processes consistently.
- Record the leave correctly in payroll.
- Seek employment law advice where entitlement or evidence is genuinely disputed.
Conclusion
Elective procedures can qualify for paid personal leave when the employee is unfit for work and meets the usual notice and evidence requirements. Employers should assess the employee’s actual capacity to work rather than whether the procedure was planned, voluntary, or cosmetic.
A consistent process focused on fitness for work, reasonable evidence, and accurate leave records will help you manage these requests fairly and reduce the risk of disputes.
If you’re unsure about the process or have concerns about an employee, get legal advice today.
FAQs
Can you use sick leave for elective surgery?
Yes, when the employee is unable to work due to a personal illness or injury and otherwise meets the paid personal leave requirements.
Can you take sick leave for cosmetic surgery?
Potentially. Cosmetic surgery isn’t automatically excluded from paid sick leave. The key issue is whether the employee is medically unfit for work and can provide appropriate evidence if requested.
Does elective surgery have to be taken as annual leave?
No. If the employee satisfies the personal leave requirements and has accrued leave available, the medically supported absence may qualify as paid personal leave.
Can an employer refuse sick leave for cosmetic surgery in Australia?
No. An employer shouldn’t refuse sick leave solely because surgery was cosmetic, voluntary, or elective. They may, however, assess fitness for work, notice, leave balances, and reasonable evidence requirements.
Can an employer ask what surgery an employee is having?
An employer may seek reasonable evidence that the employee was entitled to leave, but should generally focus on fitness for work, the expected duration of the absence, and relevant restrictions rather than on detailed medical information.
Do you need a medical certificate after elective surgery?
An employer can request evidence for even one day or less of personal leave. A medical certificate or statutory declaration may be appropriate to support the employee’s entitlement to leave.
Does recovery time after surgery count as sick leave?
It may. Recovery time may be applied when the employee remains unfit for work due to the procedure, a resulting injury, or a medical condition. The entitlement depends on the employee’s actual capacity to perform their role.
Can you take sick leave for a pre-booked medical procedure?
Potentially. A pre-booked procedure may be covered by paid sick leave if the employee is unable to work due to a personal illness or injury.
Can an employer make you use annual leave instead of sick leave?
No. If the employee is unfit for work and has sick leave available, you can’t require them to use annual leave instead. Annual leave can be used by agreement, for example for extra time off around the procedure or once sick leave runs out
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