SICKNESS ABSENCE - 07.11.2011

Laser eye surgery and paid sick leave

Image-conscious employees

Thousands of people have laser eye surgery each year to correct poor vision. But where would you stand if an employee advised you that they’re going to have this type of procedure and need some time off? Even though it’s widely regarded to be an “elective surgery”, will they be entitled to sick leave in this situation? Well, if they’re “incapable of work”, the short answer is “yes” - but the rules on pay aren’t so clear cut.

What’s the company policy?

If your company operates a contractual sick pay scheme, you should check its wording before you do anything else. Unless payment for “elective” procedures, i.e. surgery that an employee chooses but doesn’t need, is excluded they’re likely to fulfil your qualifying criteria for paid sick leave.

Note. Whilst you could argue there’s a big difference between someone choosing laser eye surgery for vanity reasons and another who needs it to remove cataracts, you can’t refuse payment if your scheme doesn’t make this distinction.

Tip 1. If your current scheme doesn’t cover the issue of paid time off for elective surgery, you should create a contractual clause that sets out your position (see The next step).

Tip 2. The easiest option is to exclude payment for all elective surgical procedures. Should an employee then try to argue that their treatment is required on “medical grounds”, you can put the onus on them to prove it, i.e. by producing a letter from their doctor or consultant which confirms that it’s necessary.

Tip 3. Your other option is to retain the right to pay discretionary company sick pay. However, the risk here is that you’ll have to make arbitrary decisions between different types of elective procedures. This could lead to an allegation of discrimination, e.g. if you exclude “boob jobs”, but allow laser eye surgery, female employees may use it to allege that your policy indirectly discriminates against women.

What about Statutory Sick Pay?

If you pay Statutory Sick Pay (SSP) only during sickness absence, an employee will be entitled to it if they qualify. It must be paid to those who are “incapable of work” where they satisfy the payment conditions, e.g. absence from work for at least four consecutive days. However, as the first three days on SSP are always unpaid, they may prefer to take paid annual leave instead (although you can’t insist on this).

It’s a disability!

Finally, we have heard of some cases where enterprising employees have argued that wearing glasses for twelve months or more qualifies as a “disability” under the Equality Act 2010 and full sick pay should be given.But this isn’t true. The Equality Act 2010 (Disability) Regulations 2010 limit visual disabilities to those who have been certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist. So if none of these apply to the employee, their argument will fail.

For a sample elective surgery exclusion clause, visit http://personnel.indicator.co.uk (PS 13.20.05).