Mental health day for employees: is there such a thing?

Your employee requests a mental health day. Is there such a thing?

What is a mental health day?

A day an employee takes off due to mental health-related issues, rather than physical illness.

The legal mumbo jumbo

The law currently does not specifically state an employee is entitled to a “mental health day off.”

While this would appear to knock the idea of an employee taking a day off for mental health reasons on the head (and we know that’s a terrible pun), we now begin our wade into waters somewhat murky…and arguably open to interpretation. Ready? Let’s go!

The National Employment Standard (NES) states that full-time and part-time employees have access to paid personal/carers leave. Under section 97 of the Fair Work Act, an employee may take paid personal/carers leave if the leave is taken:

• because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee

Still with us? Here’s the kicker:

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

The word “can” in the above sentence opens things to interpretation. One conclusion might be that while an employee could use their accrued paid personal leave if facing a mental health issue, stress leave is not a valid category in and of itself in terms of paid leave. Not super helpful, right?

So where does this leave an employer?

In our opinion, the simplest way to approach this is the same as with any illness or injury: you’d start with empathy. According to Beyond Blue, nearly 1 in 5 people experience poor mental health each year. Nearly half of us will experience poor mental health during our lives. On this statistic alone, it would not be unreasonable to assume that a person requesting to take the day off due to mental health related issues might actually need it.

Research has shown that investment in mental health has a positive return on investment. This can range from an average of $2.30 upwards for each dollar invested. So it might also be that the costs you incur in approving this day off is a positive return on your investment.

In responding to a request for a day off for mental health reasons, you’re on relatively safe ground if you communicate to your employee that this day off comes out of their accrued personal leave balance.

If you feel you need to go down the path of requesting evidence from the employee that they are unable to work, you have the right to ask the person to give evidence that shows the employee took the leave because they:

• weren’t able to work because of an illness or injury, or
• needed to provide care or support to an immediate family or household member (because of an illness, injury, or unexpected emergency affecting the member).

Employers can ask employees to provide evidence for as little as 1 day or less off work.

It’s important to exercise caution what information about the person’s condition you request. As a rule, an employee is not required to disclose their mental health condition unless that condition poses a risk to themselves or others.

Bottom line?

While mental health or stress leave isn’t (yet!) an official type of leave, taking a day for such reasons could be considered a valid use of paid personal/carer’s leave under the Fair Work Act.

Where the law stands on the subject of these days is not black and white… though it does make provisions in the sense that it is illegal for an employer to discriminate against an employee because of the person’s mental health.

Like more info on this topic or anything related to employing people? At Bare Bones Consulting we specialise in giving you the right information tailored to your business. No memberships or subscriptions, no lock-in contracts and no people with limited HR experience attempting to pass themselves off as “experts”: we think we’re the simple, all-in-one value for money solution to the HR things keeping you awake at night.