Mental Health Leave from Work: What the Law Says

The world changing at a rapid pace can be a source of major stress and anxiety for many people around the world. Locally, modern-day living (with all the technology advancements and the uncertainty that comes with that) is proving to have devastating effects on the mental health of South Africans, too. In fact, “as many as one in six South Africans suffer from anxiety, depression or substance-use problems according to statistics released by the South African Depression and Anxiety Group (SADAG). Of course, this impacts people in their place of employment as well, but are employers aware of and sensitive to mental health leave from work, and what does the law say?

What is the state of employees’ mental health at work in South Africa?

It’s been reported that nearly 10% of South Africans suffer from some form of depression, which means that it’s very likely that some of your colleagues are struggling with their mental health.  And while there can be many contributing factors, the ones specifically linked to the workplace include rising job insecurity, artificial intelligence and high job demands. But the issue is worsened by the fact that there is still a big stigma attached to depression, and it the workplace, SADAG revealed that just one in six employees is likely to discloses their mental health issues to their manager.  Because of this, workers do not approach their employers to ask about possibly taking time off to try and deal with or manage their depression or anxiety. However, some employers might not even consider depression a viable reason to take leave since it’s not a very talked-about subject.

And as Dr Sebolelo Seape, chairperson of the Psychiatry Management Group points out in an article for Business Tech: “Depression causes problems with memory, and leads to procrastination, extreme fatigue, difficulty concentrating, anxiety, fear and panic which will add to work-related stresses, crippling the output from the employee.”

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What does the law say about mental health leave in the workplace?

South African law certainly protects the rights of workers with mental health issues. An employee’s right to equality, dignity and fair labour practice is protected in the Constitution.

What’s more, the Employment Equity Act (EEA) protects employees from unfair discrimination based on illness or disability and the Labour Relations Act prohibits employers from dismissing employees because they are disabled or ill.

Legal tip: Here’s some Legal Advice on Dealing with Unfair Dismissal.

Can an employee take leave from work for depression and anxiety in South Africa?

If an employee seeks the help of a medical professional for depression and anxiety, and they are told it’s best to be booked off for some time, then they do qualify to take sick leave, which every South African employee is entitled to take. Essentially, sick leave works in a three-year cycle, giving a worker the same number of paid leave days as they would normally work in a six-week period. Basically, if they work five days a week for six weeks, that’s 30 days of paid sick leave that is owed to them over a period of three years. The doctor or medical professional is also not obligated to state what the reasons for booking a patient off, and “medical condition” is sufficient for the sick note.  If an employee is unable to get professional help, then they need to approach their employer and have an open and honest discussion about what’s affecting them and, in turn, their work.   Possible solutions can include some sick leave days, periods of flexi-time or reduced workload, for example.

Removing the stigma and having open communication in the workplace

 Going forward, employers need to take the time to educate themselves about mental health in the workplace in South Africa, and how they will manage employees who live with depression and anxiety. What’s more, they should also look at how their working environment could possibly be contributing to or exacerbating the issue. Remember, take care of your employees, and they will take care of the work.

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