Safe Work Australia recently reported that mental health concerns in the workplace are increasing, which accounted for 10.5% of the 14,600 claims in 2022-2023. Additionally, a Gallup report placed Australia and New Zealand in 2nd place globally for stress levels. Stress can cause employee disengagement, which costs the country an estimated AU$211 billion yearly. More importantly, chronic stress can take a toll on employees’ health, and may even lead to problems, such as heart disease. Fortunately, employees are entitled to a stress leave, but what does this entail?
This article aims to offer a detailed overview of stress leave in NSW, covering the legal framework, eligibility requirements, and the claims process.
What is Stress Leave?
Firstly, it’s essential to clarify that “stress leave” is not explicitly defined within Australian employment law. Instead, it falls under the broader categories of personal or sick leave. The Fair Work Ombudsman states that employees are entitled to take paid sick leave if they are unable to work due to personal illness or injury, which encompasses stress and pregnancy-related matters.
In NSW, work-related stress is identified as a hazard in the workplace, obligating employers to take reasonable measures to reduce its risks. This understanding lays the groundwork for stress-related workers’ compensation claims.
Legal Framework for Stress Leave in NSW
The legal framework governing stress leave in NSW primarily consists of two key pieces of legislation:
- The Fair Work Act 2009 (Cth)
- The Workers Compensation Act 1987 (NSW)
Under the National Employment Standards set out in the Fair Work Act, full-time employees are entitled to 10 days of paid personal or carer’s leave annually. This leave accumulates over time and can be used for personal illness or injury, including stress-related issues.
The Workers Compensation Act lays the foundation for a claim if your stress is work-related and has resulted in a diagnosable psychological condition.
Eligibility for Stress Leave
To be eligible for stress leave, you need to be experiencing stress that impacts your ability to fulfil your work duties. This can arise from various factors, such as:
- An excessive workload
- Workplace bullying or harassment
- Traumatic incidents at work
- Significant organisational changes
It’s essential to understand that for a workers’ compensation claim, you need to have a diagnosed psychological condition. Simply feeling “stressed” does not provide adequate grounds for a claim.
Common Stress-Related Conditions
Several conditions related to stress may qualify for workers’ compensation, including:
- Adjustment Disorder
- Anxiety
- Depression
- Post-Traumatic Stress Disorder (PTSD)
Nonetheless, a qualified medical professional must diagnose these conditions and establish a direct link to work-related factors.
How to Take Stress Leave
If you are considering taking stress leave, follow these steps:
- Consult Your GP: Your doctor can evaluate your condition and provide a medical certificate if needed.
- Notify Your Employer: Make sure to inform your employer as soon as possible about your need for leave.
- Check Your Entitlements: Review your employment contract and company policies regarding personal leave.
- Document Everything: Keep records of all communications and medical certificates.
Making a Workers’ Compensation Claim for Stress
If your stress is work-related and has led to a psychological injury, you may be eligible to lodge a workers’ compensation claim. Here’s how:
- Seek Medical Treatment: Consult your GP or a mental health professional for an accurate diagnosis.
- Notify Your Employer: Inform your employer of your condition within 30 days of becoming aware of it.
- Obtain a Certificate of Capacity: This must be completed by your treating doctor, clearly stating your psychological condition (not just “stress”).
- Lodge a Claim: Complete a Worker’s Injury Claim Form and submit it to your employer along with your Certificate of Capacity.
- Employer’s Responsibility: Your employer is required to forward your claim to their workers’ compensation insurer within seven days.
It’s important to remember that claims typically need to be lodged within six months of becoming aware of your injury. While extensions are possible in certain situations, prompt action is advisable.
What to Expect After Lodging a Claim
After lodging your claim, the insurer has 21 days to make a decision. They may:
- Accept your claim
- Dispute your claim
- Request additional information
If your claim is accepted, you could be entitled to:
- Weekly payments for lost wages
- Coverage for medical expenses
- A lump sum for permanent impairment (if applicable)
If your claim is disputed, you have the right to request a review of the decision, making legal advice particularly valuable in such cases.
Challenges in Stress-Related Claims
Pursuing stress-related workers’ compensation claims can be challenging due to several factors:
- Proving Work-Relatedness: You must demonstrate that work was a significant contributing factor to your condition.
- Exclusions: Claims may be denied if the stress results from reasonable management actions taken appropriately.
- Pre-existing Conditions: If you had an existing psychological condition, you’ll need to prove that work significantly worsened it.
- Stigma: Unfortunately, stigma around mental health issues in the workplace persists.
Given these challenges, many claimants find it advantageous to seek legal support when navigating a stress-related claim.
Employer Obligations and Employee Rights
Employers in NSW have a duty of care to provide a safe working environment, which includes addressing psychological risks. This encompasses:
- Identifying potential sources of work-related stress
- Implementing strategies to reduce or eliminate these risks
- Offering support for employees experiencing work-related stress
As an employee, you are entitled to:
- A safe working environment
- Raise concerns about workplace stress without fear of retaliation
- Request flexible working arrangements if experiencing stress
Returning to Work After Stress Leave
Transitioning back to work after a stress leave can be intimidating. Therefore, an effective return-to-work plan is vital, which should:
- Be gradual; consider starting with reduced hours or duties.
- Include regular check-ins with your manager or HR.
- Address the factors that contributed to your stress.
- Offer ongoing support, such as counselling or mentoring.
Your employer should collaborate with you to develop a suitable return-to-work strategy.
Preventing Work-Related Stress
While understanding your rights regarding stress leave is vital, prevention is always preferable. However, employers and employees have roles to play in preventing work-related stress:
Employers can:
- Foster a positive workplace culture
- Provide clear job roles and expectations
- Offer employee assistance programs
- Encourage a healthy work-life balance
Employees can:
- Engage in open discussions regarding workloads and stress levels.
- Implement self-care and stress management strategies
- Utilise available support services
- Strive for work-life balance
The Influence of COVID-19 on Work-Related Stress
Undoubtedly, the COVID-19 pandemic has significantly heightened stress for numerous employees. Elements such as remote work, job insecurity, and health worries have all played a role in escalating stress levels.
In response, numerous employers have introduced additional support measures, including:
- Enhanced flexibility in working arrangements
- Improved mental health support services
- Regular check-ins with remote employees
Unfortunately, even after the pandemic, many employers still contact their staff outside of normal working hours. This issue is being addressed through the right to disconnect, which has been applied to employees of non-small businesses from 26 August 2024. However, employees in small businesses can exercise their right to disconnect beginning 26 August 2025.
The Future of Stress Leave in NSW
As awareness surrounding mental health issues grows, we may witness shifts in how stress leave is managed in workplaces. Possible future developments could include:
- More explicit legislation regarding stress leave
- An increased focus on preventive measures
- Enhanced integration of mental health support into workplace policies
We Provide Expert Help
Stress leave encompasses important issues in employment law and workers’ compensation. If you’re thinking about taking stress leave or lodging a claim, it’s vital to know your rights and responsibilities. Keep documentation, seek medical care, and consider legal advice. Your mental health matters, so reach out for support from your employer or healthcare professionals. Understanding your rights and resources can help you manage work-related stress and protect your well-being.
If you’re considering stress leave, our experienced Workers’ Compensation Lawyers will guide you through the process, from assessing stress leave eligibility to lodging claim, and assist with evidence gathering and insurer negotiations. Whether you’re considering stress leave or facing challenges with a claim, we offer expert advice and compassionate support tailored to your needs so you can get the compensation you deserve. Please feel free to contact us and start your claim today.
