To put it simply –  maybe. But it’s more likely that employees can take a mental health day off work.

There are however a few important things both employers and employees should be aware of when considering mental health days off work. 

Read on to learn more. 

So, Can Employees Take A Day Off For My Mental Health?

Yes, they should be able to.

In accordance with the Fair Work Act 2009 (Cth) (‘The Act’) employees have entitlements to take ‘sick leave’ or ‘personal leave.’

The law does not specifically state that employees are entitled to a ‘mental health day off.’ However, if employees are taking a day off for your mental health, it likely falls under those leave categories.

Sick Leave and Personal Leave 

In accordance with the National Employment Standards, employees are entitled to paid sick/personal leave for personal illness. 

According to the Fair Work Ombudsman, personal illness includes stress that may impact an employee’s mental health. 

Generally speaking, how much sick leave a part-time or full-time employee is entitled to will depend on their unique circumstances and the hours they work. 

For example, an employee who works 38 hours per week over 5 days is generally entitled to 72 hours (or 10 days) of paid sick leave per year. Similarly, a part-time employee who works 19 hours a week will receive 26 hours (or 5 days) of paid sick leave per year. 

Sick leave can also accumulate if you don’t use it all up each year. You can read more about sick leave here

What About Casual Workers?

Unfortunately, casual workers are not entitled to sick leave. In turn, this means that casual workers cannot get a mental health day off work.

Casual employees would likely be working irregular and unpredictable hours. There’s usually no firm advance commitment and some degree to choose which hours to work and which hours to not work. 

Despite not having sick leave, casual employees are no less susceptible to requiring a day off work due to their mental health. 

Instead of taking a paid day of sick leave, casual employees can instead communicate with their employer that they will require the day off. 

To determine what type of employee you are, click here. 

Can You Request Evidence From Your Employees About Mental Health?

In short, you could require an employee to provide evidence of why they took a sick day. However, you shouldn’t press the employee for the specifics of their mental health. 

Some employers may ask for a medical certificate to prove that you took the day off work for legitimate reasons. Gaining a doctor’s certificate does not mean that you have to detail the ins and outs of your mental health state to your employer. In Australia, Doctor’s are not legally obligated to detail a reason for a medical certificate. This is especially so if the reason is a personal and private one. 

Alternatively, employees can obtain a statutory declaration. A statutory declaration can be signed by their local Justice of the Peace (JP). A statutory declaration is a statement that is sworn and affirmed to be true in the presence of an authorised witness (a JP in most cases).  

Not everyone may be comfortable about disclosing their mental health and employees’ privacy should be respected.

Are Employees Required To Disclose Their Mental Health ?

Generally speaking, employees not required to disclose their mental health condition unless that mental health condition poses a risk to themselves or others. 

For example, unbeknownst to the employer, if the employee took a mental health day because they were extremely stressed or anxious, there’s no obligation to specify that to the employer.

For example as an employee, if you work with heavy machinery and are required to make decisions that may place others in harm’s way, you may need to disclose your situation to your employer as you will be unable to safely carry out your job. 

How Should I Ask My Employer For A Mental Health Day? 

As discussed, it is not necessary to detail to your employer the state of your mental health in detail (unless it may cause harm to yourself or others). As such, asking your employer for a mental health day can be like asking your employer for a sick day. 

Asking your employer for a mental health day should not add to the stress that you may already be experiencing. You are entitled to be brief, clear and factual when asking your employer when taking your personal leave. 

Remember, you are not obligated to explain your mental health state if you are not comfortable in doing so. 

If you’re an employer it would be good practice to foster an environment where employees feel comfortable and can be open about how they are feeling. You could even encourage them to be open about when they need a mental health day off work so it’s not a taboo topic in the workplace.

What About Privacy & Mental Health At Work?

Under the Privacy Act 1988 (Cth), health information, including personal mental health information, is considered sensitive information. 

This means that employers obliged to keep your personal information private and confidential. Further, they can not use this information for any reason other than to ensure the safety of yourself and those you come into contact with. 

Stress – It’s A Lot On Your Mental Health! 

Whether you’re an employer or employee, your mental health is paramount to you being your optimal self. Being conscious and caring for your mental health is really important. 

Traditionally speaking, mental health has been somewhat of a taboo topic. However, more recently, society is realising the importance of focusing on mental health, especially in the workplace. 

Both employers and employees should be on the same page when it comes to mental health. As an employer, you should ensure that your employees feel safe at work and comfortable in taking mental health days off work if required. Equally, as an employee, you should feel comfortable approaching your employer to request a mental health day off. 

Whatever work you do, it can be stressful. You should never feel alone and there is always help when you need it. 

Some great tips to look after your mental health may include: 

  • Speaking to friends and family about how you’re feeling 
  • Logging off of your work emails at a reasonable hour 
  • Setting time aside to relax, watch netflix, read a book or go for a run! 
  • Speaking to your employer if you require some extended time off. 

If you’re feeling overwhelmed or stressed or simply just need somebody to talk to, some brilliant resources include: 

Your wellbeing matters. Reach out for help if you require it and exercise your right to a mental health day off work if necessary. 

Need More Help? 

Taking a mental health day off work can be really important for your wellbeing.

If you are an employer, it is important to understand in what situations your employees can take sick or personal leave, and what your obligations might be.

If you need any help, we’re here for you! Reach out to our team for a free, no-obligations chat at team@sprintlaw.com.au or 1800 730 61

About Sprintlaw

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