Chances are there will be mornings when you’re just not in the right frame of mind to come to work. On those days, you might have wondered if it was okay to take some time off to recover like you would for something like COVID or the flu.
Dr Alice Orchiston, senior lecturer at the School of Law, Society & Criminology, UNSW Law & Justice, says whether you can take such days using sick leave is becoming a more common question.
“Mental illness is a leading cause of all work absences, as well as a major source of workers’ compensation claims,” says Dr. Orchiston. “But it’s a complicated area with overlapping rights and obligations.”
Access personal/carer leave
Although mental health or stress leave is not an official type of leave, taking a mental health day could be considered a valid use of paid personal/caregiver leave under the Fair Work Act.
All employees, except casual employees, are entitled to personal/caregiver leave, which they can take if they cannot work due to personal illness or injury, or to caring for their immediate family or a sick member of the household. The annual personal/caregiver leave entitlement is 10 days for full-time employees (pro-rated for part-time employees), commencing on the first day of employment.
“If someone is ‘unfit for work’ because they are suffering from stress or a mental health condition on that day, this is covered by law, as long as they comply with the notification and evidence,” says Dr. Orchiston.
To take personal/caregiver leave, employees must notify their employer of their intention to take leave and for how long. The employer may also require proof from the employee, such as a signed medical certificate to verify the leave.
“Employees should notify the employer ‘as soon as possible’ that they are taking leave, which may be after the leave has started,” says Dr Orchiston. “The employer can also require evidence for as little as one day’s leave, which must satisfy a ‘reasonable person’ that the leave is being taken for the purpose intended. It is not always a medical certificate issued by a doctor, but a statutory declaration signed by a justice of the peace. »
“Unable to work” differs from “throwing up sick”. If you just don’t want to work one day, that wouldn’t fall under personal/carer leave.
“If someone is ‘unfit to report to work’ because they are suffering from stress or a mental health issue on that day, that is covered by law, as long as they comply with the requirements of notification and evidence.”
Where it can get tricky is making an appointment with a medical professional.
“Getting an appointment with a psychologist or psychiatrist can be difficult outside normal working hours. As it stands, personal leave does not currently extend to a situation where someone is fit to go to work but has to take time off work to go to such an appointment,” explains Dr Orchiston.
For periods of illness in excess of accrued personal leave, other forms of paid leave, such as annual leave, may be used, even if not expressly designed for this purpose.
“Some company agreements or individual contracts may offer additional personal/caregiver leave, but it depends on the industry and sector,” says Dr Orchiston. “Once you’ve exhausted all paid time off, unpaid leave is the remaining option.”
Employee protections and employer obligations
Employees also have certain protections in the event of temporary absence from work. Under the Fair Work Act, an employer cannot terminate an employee due to a temporary absence from work if the employee takes personal leave and complies with notice and evidence requirements. Employees are also protected against “adverse actions” based on the exercise of a right in the workplace – including the right to take personal leave.
“An employer cannot fire, demote, or discipline an employee for taking personal time off,” says Dr. Orchiston. “There is also no flexibility for an employer to deny access to personal leave if an employee is genuinely unemployable.”
But if an employee’s absence extends for more than three months and the employee is not on paid personal/caregiver leave for the entire duration, the employee could be terminated at that time.
Employees have other rights under the Disability Discrimination Act.
“It is illegal for an employer to discriminate against an employee with a disability,” says Dr. Orchiston. “Mental illness can be covered by the definition of disability, and while there are some exceptions, employers are required to make reasonable adjustments to help the employee fulfill their role.”
Employers also have a legal obligation to ensure the health and safety of workers, to the extent “reasonably possible”, which covers both physical and psychological health.
Despite this, it is not uncommon to feel uncomfortable discussing mental health with an employer, even though mental illness is very common.
“The prevailing stigma around raising these issues at work can make employees suspicious of judgment,” says Dr. Orchiston. “So employees may not want their mental health status known, and it shouldn’t be seen as separate from any other illness. Employees do not need to provide details about why they are taking personal leave – the medical certificate or statutory declaration may simply refer to a “medical condition”.
Rather than having specific leaves for mental health or stress, Dr Orchiston says minimum rights to paid leave could instead be expanded. In particular, it is absolutely necessary to extend the rights to paid leave to those with precarious working conditions.
“Ideally, employees would have more access to paid time off, especially given that COVID-related illness, for example, could easily exhaust a person’s existing rights,” says Dr Orchiston.
“Millions of Australian workers are also excluded from any paid leave because they work as freelancers or as casual employees.
‘It’s something Victoria is looking to address at the moment, with a pilot scheme providing up to 38 hours of paid sick leave to casual and contract workers in hospitality, retail, sales, cleaning , security, care for the elderly and care for the disabled, which is a step in the right direction. »
Read more: Are Aussies ready to break away from casual work?
Improving mental health at work
While a conversation about mental well-being at work can be difficult to bring up, if it’s affecting your work, it’s worth talking about, says Dr. Orchiston. It is also something that every manager must be prepared and open to.
“If you feel comfortable, reaching out to a trusted manager or human resources representative may be the best first step. If you are a union member, you can first contact your union for advice.
Dr. Orchiston says employers also benefit when employees are happy at work and feel their mental health is supported.
“Happier employees mean improved productivity and performance, reduced absenteeism and fewer workers’ compensation claims, which translates into lower insurance costs. They are also less likely to quit, reducing recruitment costs.
Employers can and should provide a variety of mental health support services, such as access to employee assistance programs, says Dr. Orchiston. Some, like Australia Post, have even appointed a mental health officer to champion employee wellbeing.
“Mental health is not a static thing. You can’t just come up with a wellness initiative or an awareness day once a year and hope it’s enough. It is something that is constantly evolving and requires constant harmonization,” says Dr. Orchiston.
“Ultimately, creating a work environment where employees are comfortable talking about how they feel if it affects their work, and having employers ready with practical support to help their employees in these situations, is the right thing to do.”
In an emergency, dial triple zero – 000.
For help and support, call:
- Parent Line NSW 1300 130 052
- Beyond the blue 1300 224 636
- NSW Mental Health Line 1800 011 511
- Lifeline Australia 13 11 14
- Helpline for children 1800 551 800