Tan left the post for a “double eyelid surgery”, and the company dissolved the labor contract because of her absenteeism. Several days later, Tan provided the sick leave certificate issued by hospital to the company. However, the company held that Tan asked for sick leave because of cosmetic surgery instead of illness, so Tan should ask for a personal leave instead of a sick leave. Since Tan failed to apply for a personal leave, the company had the right to dissolve the labor contract. Tan filed the dispute to the labor arbitration committee, finally, Tan failed in the arbitration proceeding. This case is one of the 2016 typical cases released by Bureau of Human Resources and Social Security of Wuxi (“WUXI BUREAU”).
The laws and regulations related to labor issues, such as the “Labor Law” and etc., have not stipulated the definition and scope of “sick” for a sick leave. In practice, there are different opinions on the cosmetic surgery. Some people think that if an employee could provide the sick leave certificate issued by a hospital, then the employee could ask for a sick leave. But other people take the similar opinion as WUXI BUREAU. From our point of view, the opinion of WUXI BUREAU is worthy to be taken into consideration. WUXI BUREAU points out: “The repairing plastic surgery is caused by illness or injury, which has a medical nature. If an employee has applied for a sick leave, then the employee shall enjoy the medical treatment. However, the cosmetic surgery is caused by a personal need, which is a private matter, so it does not have a medical nature. An employee shall ask for a personal leave, and shall not enjoy the medical treatment.”
We have searched for similar cases, and we have not found any judgment which holds the opposite view within those cases which have been published. Therefore, in practice, normally the cosmetic surgery would not be deemed as an illness, and an employee shall ask for personal leave for such reason.
From the perspective of risk management, it is recommended to pay attention to 2 special circumstances.
First, an employee could ask for sick leave for a repairing plastic surgery. For example, in the case (2017) Hu 01 Min Zhong No.12753, Zhang scalded at home, and asked for a sick leave for the skin grafting surgery. The company held that the sick leave certificate was fabricated, and dissolved the labor contract with the reason of absenteeism. The court heard that the company failed to prove the sick leave certificate was fake, and supported the employee. In view of this, the court held that an employee could ask for sick leave for a repairing plastic surgery.
Second, if a cosmetic surgery is urgent or necessary, then such personal leave might be deemed as a sick leave. For some special people, for example, a person with severe cleft lip and palate, or a large range of birthmarks on his face, and etc., if an employer refuses to approve such sick leave, then it might have risks. In order to reduce the risks, companies could list the cosmetic surgeries which shall not be deemed as a sick leave reason in the internal rules and regulations.