Stress leave in Australia

What is stress leave?

"Stress leave" isn't a legal category in Australia. It's the everyday name for taking paid sick leave because stress, burnout, anxiety, depression or another mental health condition means you're not fit for work. The Fair Work Act calls it paid personal/carer's leave, and the Fair Work Ombudsman says a personal illness can include stress ^[1].

"Mental health leave" means the same thing. Some workplaces offer extra wellbeing days or more generous leave through an award, enterprise agreement or policy. Those can add to your entitlements but can't give you less than the National Employment Standards (NES), which are the legal minimum for most employees ^[8].

The NES cover most Australian workplaces. The main exceptions are state public sector employees in NSW, Queensland, South Australia, Tasmania and Western Australia, and local government employees in NSW, Queensland, South Australia and Western Australia, who are covered by their state system ^[9]. In Western Australia, employees of sole traders, partnerships and other unincorporated businesses are also in the state system ^[9]. If that's you, your state award or public sector rules set your sick leave.

How much stress leave can you take?

You can take as much paid sick leave as you've built up. There's no minimum or maximum amount you can take in one go ^[1].

Leave builds up based on your ordinary hours, and can be calculated as 1/26 of your ordinary hours of work in a year ^[1]. A full-time employee working 38 hours a week accrues 76 hours a year ^[1]. It keeps building up while you're on paid leave, such as annual leave or sick leave, but not during unpaid leave ^[1].

Unused sick leave rolls over to the next year, so a balance can grow if you rarely use it ^[1].

Is stress leave paid?

Yes, as long as you have paid sick leave available. Sick leave is paid at your base pay rate for the hours you would normally have worked ^[4]. Your base rate doesn't include overtime, penalty rates, loadings, allowances, bonuses or incentive payments ^[4].

Casual employees don't get paid sick leave ^[1]. If you're casual and stress has stopped you working, look at whether your award or agreement gives anything extra, and whether your situation could be a workers compensation matter (see below).

Does stress leave come out of sick leave?

Yes. There's one balance for sick and carer's leave, and stress leave comes out of it ^[1][2]. Taking a week off for stress uses your sick leave in exactly the same way as taking a week off for the flu.

The exception is an accepted workers compensation claim. Workers compensation is a separate insurance system that can pay wages while you're not fit for work, plus medical and rehabilitation costs, if your injury or illness was caused by work ^[12].

How do you take stress leave from work?

The legal requirements are simple: tell your employer, and give evidence if they ask for it.

• Notice. Let your employer know as soon as possible. This can be after your leave has already started. You should also say how long you expect to be off ^[3].
• Evidence. Your employer can ask for evidence that you weren't able to work because of illness, even for 1 day or less ^[3]. Medical certificates and statutory declarations are both examples of acceptable evidence ^[3].
• The test. There are no strict rules on the type of evidence. It has to convince a reasonable person that you were genuinely entitled to the leave, and the type of evidence your employer asks for must be reasonable in the circumstances ^[3].
• If you don't provide it. If your employer asks for evidence and you don't give it, you may not be paid for the leave ^[3].

You don't have to tell your employer your diagnosis to take sick leave. Our guide to a stress leave certificate explains what a certificate says and doesn't say, and how to get stress leave walks through talking to your GP and your employer.

How long can you be off on stress leave?

While you're using paid sick leave, your employer can't dismiss you because of your absence, regardless of how long you're on leave ^[5].

There's also a protection against being dismissed for a temporary absence due to illness or injury. To rely on it, you need to have done one of these: given your employer a medical certificate or statutory declaration within 24 hours of the absence starting (or a longer period that's reasonable in the circumstances), followed your award or agreement's rules for notifying and backing up an absence, or given your employer evidence for paid sick leave when they asked for it ^[6].

That protection ends once both of these apply ^[5]:

1. You've been away more than 3 consecutive months, or more than 3 months in total over the last 12 months.
2. You've used all of your paid sick leave.

Time you spend receiving workers compensation doesn't count as paid sick leave for this rule ^[6]. State and territory workers compensation laws can give their own protections, though ^[5]. Even after the protection ends, your employer still has to follow the proper rules for a dismissal, and an unfair dismissal, general protections, unlawful termination or discrimination claim may still be available ^[5].

What happens when your paid sick leave runs out?

When your paid sick leave is used up, you may be able to take other paid leave, such as annual leave or long service leave, or agree with your employer on a period of unpaid leave ^[10]. Your award or enterprise agreement may give you more options.

The NES doesn't give you unpaid sick leave for your own illness. The only NES unpaid leave of this kind is unpaid carer's leave, which is for caring for a family or household member ^[2]. It's worth asking your employer early about your options, rather than waiting until your balance hits zero.

Can you be fired for taking stress leave?

Taking sick leave is a protected workplace right. Under the general protections in the Fair Work Act, your employer can't dismiss you or treat you badly because you took, or tried to take, leave you're entitled to ^[7]. They also can't treat you unfairly because of a physical or mental disability ^[7].

If you're dismissed and think it was because of your leave or your mental health, time limits are short. A general protections dismissal application generally has to be made to the Fair Work Commission within 21 days of the dismissal ^[7]. Get advice quickly from the Fair Work Ombudsman, your union, a community legal centre or an employment lawyer.

Is stress leave the same as workers compensation?

No. Sick leave covers illness from any cause, at home or at work. Workers compensation is insurance your employer must hold for injuries and illnesses caused by work, and each state and territory runs its own scheme ^[12].

Work-related mental health claims are common and tend to involve long recoveries. Mental health conditions made up 12.0% of serious workers compensation claims in 2023-24 (preliminary data) ^[11]. The median time lost was 35.7 weeks in 2022-23, compared with 7.4 weeks across all serious claims ^[11]. Harassment or bullying (33.2%) and work pressure (24.2%) were the most common causes of mental stress claims ^[11].

Most schemes have strict tests, including exclusions for injuries caused by reasonable management action like performance reviews or discipline. The rules differ a lot by state:

What kinds of work stress affect mental health?

Research backs up what many people feel. A meta-review of work-related risk factors found moderate evidence from multiple prospective studies linking these factors to a greater risk of common mental health problems ^[13]:

• high job demands
• low control over your work
• putting in a lot of effort for little reward
• unfair treatment or unfair processes
• role stress
• bullying
• low social support at work

If your stress has built up over months and you feel exhausted, detached from your job and less effective, our guide to burnout explains how burnout differs from depression and what helps recovery.

When to see a GP

It's worth seeing a GP if stress is affecting your sleep, your mood, your concentration or your ability to get through a workday. You don't have to wait until you're at breaking point.

At Mental Health Clinic, your first appointment is a GP mental health assessment by video, about an hour long. Your GP will ask what's been happening at work and at home, check how you're sleeping and coping, and make a plan with you. That can include treatment, regular follow-up, and a referral to a psychologist or psychiatrist if you need one. Your GP can issue a medical certificate where it's clinically appropriate, but that's their decision based on your assessment. You can request an appointment online.

If you're in crisis or thinking about suicide, call Lifeline on 13 11 14 or 000 in an emergency.

This page is general information, not legal or medical advice.