Login
‘Mental health is not something static’ for lawyers
Mental health days could be considered a type of sick leave under the Fair Work Act, according to one law professor.
Lauren Croft
Whilst mental health leave isn’t an official type of leave, Dr Alice Orchiston, lecturer at the School of Law, Society and Criminology, UNSW Law and Justice, said that whether you can take mental health days using sick leave is becoming a more common question.
“But it is a complicated area with intersecting rights and obligations.”
Under the Fair Work Act, however, Dr Orchiston said that mental health days could be considered a valid use of paid personal/carer's leave.
“If someone is ‘unfit to attend work’ because they are experiencing stress or a mental health issue that day, then that is covered by the entitlement, as long as they comply with the notice and evidence requirements,” she said.
“Employees must advise the employer ‘as soon as practicable’ that they’re taking a leave, which might be after the leave has commenced. The employer can also require evidence for as little as one day off, which must satisfy ‘a reasonable person’ the leave is being taken for the intended purpose. That might not always be a medical certificate issued by a doctor, it can be a statutory declaration signed by a Justice of the Peace.”
In terms of employee protections, an employer is unable to dismiss someone for taking a personal leave, as long as they have complied with the notice and evidence requirements — such as getting a psychologist or psychiatrist to sign off on a mental health day.
“An employer cannot terminate, demote or discipline an employee for taking personal leave. There’s also no flexibility for an employer to deny access to personal leave if an employee is actually unfit for work,” Dr Orchiston explained.
“It is against the law for an employer to discriminate against an employee with a disability. 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 to perform their role.”
In addition to welcoming open and honest conversations about mental health in the workplace, Dr Orchiston said that employers should provide access to mental health support services and employee assistance programs.
“Mental health is not something static. You can’t just offer a wellness initiative or an awareness day once a year and hope that’s enough. It’s something that’s constantly evolving and needs constant attuning,” she added.
“Ultimately, creating a workplace environment where employees are comfortable to talk about how they’re feeling if it’s affecting their work, and having employers ready with practical support to help their employees in those situations, is the right thing to do.”
Lauren Croft
Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.
