Legal Talk: Can you take mental health days? What the law says

You’re just not coping right now and need to take a day off - what are the legal ramifications?

We've all been there. Whether it's dealing with work overload, or personal heartache or just a complicated home life. You’re not technically sick, but sometimes you just need some time out. A day where you don’t have to answer to no one and nothing. 

Can you take a mental health day?

Evan Thompson, founder and owner of Evan Thompson and Associates, says in an article for Huffpost: “Mental health days are critical to most professionals' long term performance and well-being. Over three decades in the workforce has shown me that those who never take a mental health day, let alone holiday time or frequently work weekends, are hurting themselves and their companies: burnout is never far away.”

Let’s take a look at what the law says:

Since a mental health day would be considered a day of sick leave according to the Department of Labour, your employer may ask you to provide a sick certificate. This is in order to justify paying you if you’re not at work for more than two consecutive days or are absent regularly.

Jeannine Scheltens, the divisional HR manager for, advises that you tell your direct manager why you’re taking a day off, because then they could be more understanding of your situation and offer you added support.

What about mental illness?

So, you’re covered when it comes to taking a day or two to rest and recuperate your mind. But what if it’s not just one day? What if you’re diagnosed with a mental illness?

Well, according to the Code Of Good Practice On Key Aspects Of Disability In The Workplace, your employer needs to make proper provision for you if you have a mental disability or “impairment” which is defined as “a clinically recognised condition or illness that affects a person's thought processes, judgment or emotions.”

The Code is meant to help employers and employees understand their rights and obligations when it comes to disability. The Employment Equity Act means that you’re protected from unfair discrimination and entitles you to affirmative action measures in case you need them.

The Code says “employers should reasonably accommodate the needs of people with disabilities. The aim of the accommodation is to reduce the impact of the impairment of the person's capacity to fulfil the essential functions of a job.”

You can read more on what is defined as “reasonable accommodation” for people with disabilities in the Code here.


Carmen Williams