Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Mental health is top of mind for many teams, and as an employer, you play a key role in how your workplace responds when someone needs time off for their wellbeing.
If you handle mental health days off work well, you’ll support your people, comply with the law and reduce disruption to your business.
In this guide, we’ll step through what mental health days mean in an Australian employment law context, what employees are entitled to, how to manage requests, what evidence you can ask for, and the key policies and contracts to have in place.
What Are Mental Health Days Off Work?
“Mental health day” isn’t a formal legal term. In practice, it usually means an employee taking time off because they’re unwell due to stress, anxiety, depression, burnout or another mental health condition.
Under Australian law, time off for mental ill-health generally falls under personal/carer’s leave (often called sick leave). That’s the same entitlement employees use when they’re physically unwell.
So, when someone says they need a mental health day, think “sick leave process” and manage it in line with your normal approach to illness and injury-just with extra care for privacy and sensitivity.
Are Employees Entitled To Mental Health Days In Australia?
Yes-if they’re unfit for work due to illness or injury, including mental ill-health, they can access their sick leave under the National Employment Standards (NES). Here’s how it typically works.
Paid Personal/Carer’s Leave (Permanent Employees)
- Full-time and part-time employees accrue paid personal/carer’s leave (10 days per year for full-time, pro‑rated for part-time).
- They can use that leave when they’re unwell due to mental health reasons, provided they follow your notification and evidence requirements.
Unpaid Leave (Casuals And When Paid Leave Is Exhausted)
- Casual employees don’t get paid sick leave, but they can usually take unpaid carer’s leave in certain situations, and may take unpaid time off for illness.
- Permanent employees who’ve run out of paid sick leave may also request unpaid leave, or you can explore alternatives like annual leave (by agreement).
Notification And Evidence
- Employees must let you know as soon as practicable that they’re taking sick leave and how long they expect to be off.
- You can ask for reasonable evidence that would satisfy a reasonable person the leave is genuine (more on certificates below).
Importantly, your duty of care to provide a safe workplace includes psychological safety. Managing psychosocial risks, responding to mental health concerns and offering reasonable support can reduce the chance of injuries, complaints and claims down the track. A quick refresher on your Fair Work obligations in this area is worthwhile.
Handling Requests And Evidence: A Practical Process
Clear, consistent steps make these situations easier for everyone. Here’s a practical approach you can adapt for your team and industry.
1) Encourage Early Notification
Ask employees to notify their manager as soon as they can (even if it’s a short text followed by a formal leave request). Early notice helps you cover rosters and maintain service levels.
2) Use A Simple, Respectful Script
Managers don’t need to investigate the employee’s health. A short script keeps things consistent and respectful, for example:
“Thanks for letting me know. Please take the time you need. As per our policy, we may require evidence-let me know if you’ll be away longer than a day so we can plan cover.”
3) Ask For Evidence When It’s Reasonable
You can require evidence if it’s reasonable in the circumstances. Often, a doctor’s certificate is the simplest option. For clarity on when you can request it, see our guidance on medical certificates.
If the employee explains they can’t see a GP immediately, consider whether a statutory declaration or later certificate is acceptable. Balancing business needs with compassion is key. For context, here’s how some employers handle sick days without a certificate while staying compliant.
4) Respect Confidentiality
Health information is sensitive. Keep details on a strict need-to-know basis and store records securely. In many cases, you don’t need to know the diagnosis-only that the person is unfit for work and the expected return date.
5) Plan The Return To Work
For short absences, a quick check-in on return can be enough. If the employee will be off for longer or needs adjustments, ask for medical guidance about what duties they can safely perform, any temporary restrictions, and whether a gradual return is appropriate.
6) Keep Good Records
Record the leave request, any evidence provided, and the decisions you made. Consistency and documentation help if a dispute arises later.
What About Casual Employees?
Casuals don’t have paid sick leave, but your expectations and processes should still be clear. If you need to see evidence for an absence (e.g. for rostering reliability or to consider ongoing engagements), make sure your policies outline when you’ll ask for it and what’s acceptable. It’s also helpful to understand the nuances around medical certificates for casuals.
Policies, Contracts And Legal Documents To Put In Place
The right documents make decisions faster and reduce grey areas for managers. Consider building the following into your HR toolkit.
Employment Contracts
Make sure each employee has an up-to-date Employment Contract (or a casual contract) that aligns with awards or enterprise agreements and sets out key terms-hours, leave notification requirements, evidence expectations and processes.
Workplace Policies
Clear workplace policies help your managers apply the same standards to everyone. Most employers include:
- Sick Leave and Evidence Policy: When employees should notify you, what evidence you may request, and how to provide it.
- Work Health and Safety (WHS) Policy: Your commitment and steps to manage psychosocial risks and hazards.
- Equal Opportunity and Anti-Discrimination Policy: A reminder that mental health conditions must be treated fairly and without stigma.
- Bullying and Harassment Policy: What’s not acceptable, how to report concerns, and how you’ll respond.
Return-To-Work Plan (Template)
A simple template helps managers coordinate adjustments, confirm duties, set check-in dates and clarify any medical requirements. It keeps everyone on the same page.
Privacy And Record-Keeping Processes
Decide who can access health-related information, where it’s stored and how long you’ll keep it. Only collect what you need, and keep health details separate from general personnel files where possible.
Training For Managers
Front-line managers often take the first call when someone asks for a mental health day. Train them to respond empathetically, apply policies consistently and escalate issues appropriately. A short, practical training session can prevent missteps and build confidence.
Managing Extended Absences, Safety And Performance
Most mental health days are short and straightforward. Sometimes, though, an employee needs extended time off or ongoing support. Here’s how to navigate the trickier scenarios.
Stress Leave And Extended Illness
“Stress leave” is typically just sick leave, but the absence can last longer. You can reasonably ask for medical evidence about fitness for work and timeframes. It’s sensible to manage the situation under your absence management policy and your WHS framework, and to consider suitable duties if the employee can return part‑time or with adjustments. For a deeper dive, see our guide to stress leave.
Reasonable Adjustments
Depending on the situation, you may need to consider reasonable adjustments-temporary changes to hours, duties, workload or work location that help the employee perform the inherent requirements of the role without undue hardship to your business.
Adjustments should be guided by medical information and balanced against operational needs. Document what you agree and set review dates.
Independent Medical Assessments (IMAs)
If there’s conflicting information, uncertainty about capacity, or safety concerns, an independent medical assessment may be appropriate. Take advice before arranging one to ensure the scope and questions are fit for purpose and lawfully handled.
Safety First
Your WHS duties require you to manage risks to mental and physical health. If you have concerns about safety-yours, your employee’s or others’-act quickly. That might mean adjusting duties, offering leave, or seeking medical clearance before a return to particular tasks. In higher-risk environments, your safety protocols should be very clear on triggers and escalation steps.
Performance Issues And Misconduct
Sometimes performance or conduct concerns arise alongside health issues. Keep the processes separate but coordinated:
- Assess capacity: Is the employee currently fit to participate in a performance process? Do you need medical input?
- Follow your process: Provide clear expectations, reasonable time to improve and support where appropriate.
- Be consistent: Document meetings and decisions, and apply your policies uniformly.
If you receive new medical information mid-process, pause and reassess your next steps. Getting advice early can help you strike the right balance between lawful management and compassionate support.
When Evidence Is Needed For Return To Work
Where safety is a concern, or where an employee has been away for a longer period, it can be reasonable to request a fitness for work note. In some roles, you might also need more detailed guidance on restrictions and adjustments; just be sure you only request information that is necessary.
Casual And Rostering Considerations
For casuals, you’ll still want a fair, transparent approach to rostering. If an employee is frequently unavailable at short notice, a respectful conversation about availability, any support you can offer and business needs can be helpful. Keep in mind the line between lawful rostering decisions and potential adverse action-document your reasons and focus on genuine operational requirements.
Key Legal Questions Employers Ask (Answered)
Can We Require A Medical Certificate For A Single Day Off?
Yes, if it’s reasonable in the circumstances and your policy says you may ask for it. Many employers reserve the right to request a certificate for single‑day absences, especially around public holidays or repeated Monday/Friday absences. Whether you exercise that right for a particular absence is a judgment call-consistency matters, but so does common sense. If you’re unsure about the boundaries, revisit your approach to medical certificates.
Do We Need A Diagnosis?
No. In most cases, a simple certificate confirming the person is unfit for work is enough. Only request more detail if it’s necessary (for example, to understand safe duties or hours).
What If An Employee Won’t Provide Evidence?
If you clearly requested reasonable evidence under your policy and they refuse, you may treat the absence as unauthorised. Before taking any step that affects pay or discipline, double‑check that your policy was followed and the request was reasonable in the circumstances.
How Should We Handle Frequent Short Absences?
Start with a supportive conversation. Explore whether there’s an underlying issue, confirm your evidence expectations, and consider reasonable adjustments. If concerns continue, manage it under your attendance or performance process. Consistency and documentation are essential.
What About Employees On Probation?
Probation doesn’t change sick leave entitlements. You still need to manage health and performance fairly and lawfully. If ending employment becomes necessary, follow a proper process and ensure decisions aren’t based on a protected reason (like illness or mental health).
Key Takeaways
- Mental health days are generally managed as sick leave-apply your standard notification and evidence rules with sensitivity and respect for privacy.
- Permanent employees can use paid personal/carer’s leave for mental ill‑health; casuals may take unpaid time off in certain circumstances.
- It’s lawful to require reasonable evidence, such as a doctor’s certificate; set clear expectations in your policies and contracts and apply them consistently.
- Support safe returns to work with practical adjustments where appropriate, guided by medical information and your WHS duties.
- Equip managers with the right tools: solid Employment Contracts, clear workplace policies, a return‑to‑work template and basic training.
- For extended absences or complex cases, treat stress leave as sick leave, consider reasonable adjustments and keep strong records to manage risk.
If you’d like tailored help setting up contracts, policies and processes to manage mental health days off work in your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.
