Australia has no separate stress leave entitlement. Time off for stress comes out of your paid sick and carer's leave, and the Fair Work Ombudsman says paid sick leave can be used for stress. If work caused a psychological injury, workers compensation may also apply, and each state and territory runs its own scheme.
What is stress leave?
Stress leave is the everyday name for taking paid sick leave when stress means you can't work. An employee can take paid sick leave when they can't work because of a personal illness or injury, and the Fair Work Ombudsman says this can include stress.
Mental health days come from the same balance unless your employer offers extra leave on top.
How much paid leave can you use for stress?
Sick leave and carer's leave are one balance under the National Employment Standards, also called personal/carer's leave. Full-time employees get 10 days a year. Part-time employees get it pro rata, worked out as 1/26 of their ordinary hours.
It builds up from your first day, and the balance at the end of each year carries over to the next. You can take as much as you have built up, with no minimum or maximum for each absence. Casual employees don't get paid sick leave.
Our guide to sick leave in Australia covers how it is paid and what happens when it runs out.
Do you need a medical certificate for stress leave?
Your employer can ask for evidence for as little as 1 day or less off work. If you don't provide it when asked, you may not be paid for the leave.
A medical certificate and a statutory declaration are both examples of acceptable evidence. The test is whether the evidence would convince a reasonable person that you were entitled to the leave.
Tell your employer as soon as possible, which can be after the leave has started, and say how long you expect to be off. The Fair Work Ombudsman doesn't consider it reasonable for an employer to contact your doctor for more information.
Can you get workers compensation for stress?
If work caused it, you may be able to. Workers compensation is insurance that covers your wages while you aren't fit for work, and your medical and rehabilitation costs. Employers in each state and territory have to take out workers compensation insurance.
Safe Work Australia says workers compensation can cover a psychological injury such as anxiety or depression if:
- you meet your scheme's definition of a worker
- work was a significant contributing factor to the injury.
If the injury came from a reasonable decision or action by your employer, you may not be eligible.
Each state and territory sets its own rules and has its own regulator. The Fair Work Ombudsman lists them as WorkSafe ACT, the State Insurance Regulatory Authority in NSW, NT WorkSafe, WorkCover Queensland, ReturnToWork SA, WorkSafe Tasmania, WorkSafe Victoria, WorkCover WA and Comcare. Check the rules with yours before you make a claim.
Can you be treated badly for taking stress leave?
The Fair Work Act protects you. Paid sick leave is a benefit under a workplace law, which makes it a workplace right, and it is unlawful for an employer to take adverse action against you because you used it. Adverse action includes firing you, changing your job to your disadvantage and treating you differently from other employees. Physical or mental disability is also a protected attribute.
If you can provide evidence of your illness, you are protected from being dismissed because of your absence while you are away for less than 3 consecutive months, or less than 3 months in total over the last 12 months. You are also protected for as long as you are using paid sick leave.
If you are dismissed and think it was for a protected reason, you have 21 days from the day after the dismissal to apply to the Fair Work Commission. Our guide to unfair dismissal payouts covers what a claim can lead to.
What did TAC readers tell us?
We asked our community how their employer handled mental health and stress leave.
Many described leave that came up again at review time or was recorded as something else. Others said their workplace made it easy to take.
I was totally burnt out at work through covid so took a week off that I thought would be stress or sick leave... they reclassed it as annual leave but I was too broken at that point to challenge it and ended up leaving 2 months later
At review time, they said "would be good if they planned their mental health days better". It was the only mental health day I had taken that year 💀
My manager reacted "you're my 2IC! I can't have you go on stress leave suddenly"
Current workplace has been great! I took 2 weeks of stress leave a few years ago and they didn't even deduct my sick leave. Mental health days are encouraged and leaders are very open about taking them so it's not taboo
This is general information, not legal advice. Your award, enterprise agreement or contract may give you more leave, and workers compensation rules differ by state and territory.
Sources
- Fair Work Ombudsman, Paid sick and carer's leave (stress counts as illness, 10 days, pro rata at 1/26, accumulation, carry over, no minimum or maximum, casuals)
- Fair Work Ombudsman, Notice and medical certificates (evidence for 1 day or less, medical certificate or statutory declaration, reasonable person test, notice, contacting your doctor)
- Fair Work Ombudsman, Long periods of sick leave (the 3 month protection from dismissal)
- Fair Work Ombudsman, Workers compensation (run by each state and territory, what it covers, employer insurance, the list of regulators)
- Safe Work Australia, Workers' compensation for psychological injuries (definition of worker, significant contributing factor, reasonable management action exclusion)
- Fair Work Ombudsman, Protections at work (workplace rights, adverse action, 21 days)
- Fair Work Ombudsman, Protection from discrimination at work (physical or mental disability as a protected attribute)
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