Mental Health Days and Sick Leave in New Zealand
In New Zealand, the concept of taking a 'mental health day' is generally accommodated under the existing legal framework for sick leave. The law does not specifically define 'mental health days' as a separate category of leave; instead, mental health conditions are typically considered valid reasons for utilising an employee's sick leave entitlement, provided the employee is genuinely unable to work due to their condition.
Entitlement to Sick Leave
Employees in New Zealand become entitled to sick leave after they have completed 6 months of current continuous employment with the same employer, or have completed 6 months of continuous employment that includes working for the employer for at least 240 hours during that 6-month period and working for an average of 10 hours a week during that period [Source: Holidays Act 2003, s 65(1)].
Once eligible, employees are entitled to 10 days of paid sick leave for each 12-month period of employment [Source: Holidays Act 2003, s 65(2)]. Unused sick leave can accumulate up to a maximum of 20 days in total at any one time, unless an employment agreement provides for a higher maximum [Source: Holidays Act 2003, s 69].
What Constitutes 'Sickness' or 'Injury'?
The Holidays Act 2003 defines 'sick leave' as leave taken by an employee who is sick or injured [Source: Holidays Act 2003, s 66(1)(a)]. The legislation does not differentiate between physical and mental illness, meaning that mental health conditions are considered legitimate grounds for taking sick leave, provided the employee's ability to perform their work is genuinely affected.
Sick leave can also be taken for the sickness or injury of a person who is dependent on the employee, such as a spouse, de facto partner, child, parent, or other person who is dependent on the employee [Source: Holidays Act 2003, s 66(1)(b), s 66(2)].
Employee Obligations When Taking Sick Leave
When an employee intends to take sick leave, they are generally required to notify their employer as early as possible before they are due to start work, or as soon as practicable if that is not possible [Source: Holidays Act 2003, s 67(1)]. This notification should indicate that the employee is unable to attend work due to sickness or injury. The notice should be sufficient to allow the employer to manage their operational requirements.
Employers may require proof of sickness or injury, such as a medical certificate, if the sick leave is for 3 or more consecutive calendar days [Source: Holidays Act 2003, s 68(1)]. If an employer requires proof for sick leave of less than 3 consecutive calendar days, they must agree to pay the employee's reasonable expenses in obtaining that proof [Source: Holidays Act 2003, s 68(3)]. A medical certificate is a formal written statement from a registered health professional, usually a doctor, confirming an individual's health status and their inability to work.
Employer Obligations Regarding Sick Leave
Employers are obligated to pay employees for sick leave at their relevant daily pay or average daily pay, depending on the nature of their work and pay arrangements [Source: Holidays Act 2003, s 69A, s 70, s 71]. Employers must also keep accurate records of employees' sick leave entitlements and usage [Source: Holidays Act 2003, s 81; Employment Relations Act 2000, s 130].
The Role of Good Faith
The Employment Relations Act 2000 mandates that employers and employees deal with each other in good faith [Source: Employment Relations Act 2000, s 4]. This principle requires parties to be active and constructive in their employment relationship, be responsive and communicative, and not to do anything that directly or indirectly misleads or deceives the other party. In the context of sick leave for mental health, this means both parties should act honestly and transparently, with the employee providing genuine reasons for their absence and the employer treating such absences with respect and understanding, while also being able to manage business operations.
When to Seek Independent Legal Advice
It is recommended that individuals seek independent legal advice from a qualified professional if there are disputes concerning sick leave entitlements, difficulties in managing an employee's mental health-related absences, or questions about specific employer policies and their alignment with legislative requirements. For free legal assistance, individuals can contact a Community Law Centre.