Sometimes your team (or you) isn’t physically unwell, but you’re not okay either. Stress, anxiety, burnout and other mental health challenges can make it genuinely hard to work safely and effectively - and that’s where the idea of a “mental health day” comes in.
This article is a 2026-updated guide to how mental health days work in New Zealand, what the law generally allows, and what you should do (as an employer or employee) to handle the situation fairly and legally.
We’ll keep it practical and plain-English, because while mental health is a sensitive topic, the employment obligations around leave, privacy, and workplace safety need to be handled carefully from day one.
Is A “Mental Health Day” A Real Type Of Leave In New Zealand?
In most NZ workplaces, a “mental health day” isn’t a separate category of leave in law. Instead, it’s usually handled under existing leave types - most commonly sick leave.
The key point is this: mental health is health. If someone is unwell due to stress, anxiety, depression, burnout, or another mental health issue, they may be entitled to take sick leave in the same way they would for a physical illness.
So, while your payroll system might not have a button called “Mental Health Day”, the legal framework already covers many of these situations.
What This Means In Practice
- Employees can usually request time off because they’re unwell, without needing to label it “mental health leave”.
- Employers should generally treat mental health-related absence like any other health-related absence, while still following a fair process.
If you want a deeper practical overview of how mental health-related absence is commonly handled, mental health day off work is a helpful starting point.
When Can An Employee Use Sick Leave For Mental Health?
Most mental health days are taken as sick leave under the Holidays Act 2003. In plain terms, if you’re an employee and you’re not well enough to work (including due to mental health reasons), sick leave is usually the correct pathway.
Basic Sick Leave Entitlement (The Usual Rule)
In general, employees become entitled to 10 days’ paid sick leave after 6 months of continuous employment, and then 10 days each 12 months after that (subject to the Holidays Act rules). Sick leave can also accumulate up to a cap.
Whether the absence is for a migraine, a stomach bug, or acute anxiety symptoms, the “unwell and unable to work” concept is what matters.
Does The Employee Have To Tell You It’s Mental Health?
Not necessarily. An employee can usually say something like:
- “I’m unwell today and won’t be in.”
- “I need to take sick leave.”
They do not always have to disclose details of their condition. That said, sometimes employees choose to share that it’s mental health-related because they want support, adjustments, or understanding - and that can be a good thing when handled respectfully and privately.
Can An Employer Ask For Proof (Medical Certificate)?
Yes, in some situations. Under the Holidays Act framework, an employer can typically request medical evidence if:
- the employee has been away for 3 or more consecutive calendar days (including weekends and non-working days); or
- the employer asks earlier, but then generally needs to pay the reasonable costs of obtaining the medical certificate.
A medical certificate doesn’t usually need to specify the exact diagnosis. Often it will simply confirm the employee is unfit for work for a certain period.
If The Employee Has No Sick Leave Left
This is where things can get tricky. If sick leave is exhausted, options may include:
- annual leave (if the employee agrees or if your workplace follows a lawful process);
- unpaid leave (by agreement);
- working from home or temporary flexibility (if appropriate and agreed);
- a tailored plan to support a safe return to work.
What you should avoid is turning it into a disciplinary issue just because someone is struggling - especially without understanding your obligations first.
What Are An Employer’s Legal Obligations Around Mental Health?
If you employ staff in New Zealand, you’re not just managing rosters and performance - you also have legal duties that touch on mental wellbeing.
1) Health And Safety Duties (Mental Health Counts)
Under the Health and Safety at Work Act 2015, you must take reasonably practicable steps to ensure the health and safety of workers. “Health” includes psychological health - so issues like stress, fatigue, bullying, harassment, and burnout can fall within your health and safety responsibilities.
This doesn’t mean you can prevent every mental health issue in someone’s life. But it does mean you should manage workplace risks that could contribute to harm.
In day-to-day terms, this might include:
- having a reasonable workload and resourcing;
- addressing bullying or toxic behaviour early;
- training managers to spot and respond appropriately;
- having clear processes for raising concerns and seeking support.
If you want a plain-English overview of what this duty can look like in employment settings, duty of care is a useful reference point.
2) Good Faith And Fair Process
Under the Employment Relations Act 2000, employers and employees must deal with each other in good faith. In mental health contexts, “good faith” often looks like:
- not jumping to assumptions about an employee’s attitude or reliability;
- communicating clearly and respectfully;
- giving the employee a genuine opportunity to respond before making decisions that affect them;
- considering support options where appropriate.
3) Anti-Discrimination Obligations
The Human Rights Act 1993 prohibits discrimination on certain grounds, including disability (which can include some mental health conditions, depending on the circumstances).
This matters because the “wrong” response to mental health absence isn’t just bad culture - it can become legal risk. For example, if an employee is treated unfavourably because they have a mental health condition (or because you think they do), that may create exposure to a personal grievance or a discrimination complaint.
4) Confidentiality And Privacy
Health information is sensitive personal information. Even if an employee tells a manager they’re taking a mental health day, that doesn’t mean it should be shared around the team.
Under the Privacy Act 2020, you should only collect, use, and disclose personal information when you have a lawful purpose and you’re doing it in a fair, limited way.
Many employers set expectations about handling employee information in a policy document such as an Employee Privacy Handbook, so managers understand what stays confidential and what can be recorded.
How Should You Handle A Mental Health Day Request (Employer Checklist)
When someone calls in and says they need a mental health day, the legal and “human” response should work together. You want to support your team, but you also need a consistent and fair process - especially if absences become frequent or operationally difficult.
Step 1: Keep The First Conversation Simple
In most cases, you don’t need details. A practical approach is to confirm:
- they won’t be attending work;
- what leave they want to take (usually sick leave);
- when they expect to return (if they know).
If the employee volunteers that it’s mental health-related, keep your tone calm and supportive, and avoid “diagnosing” the situation.
Step 2: Record The Leave Correctly
Make sure it’s accurately recorded in payroll/leave systems. Consistency matters - both for compliance and for avoiding later disputes.
This is also a good time to check your Employment Contract and leave policies so you’re applying your rules consistently across the business.
Sometimes a mental health day is simply a one-off “I’m overwhelmed” situation. Other times, it can signal a real risk of harm (to the employee or others), or a risk created by workplace factors like bullying or fatigue.
If there are red flags - for example, comments suggesting self-harm - it may be appropriate to encourage the employee to seek urgent support and consider contacting emergency services if you believe there is an immediate risk. (This is not a “legal” response so much as a safety one.)
Step 4: If Absences Are Ongoing, Move To A Supportive, Structured Process
If an employee’s mental health-related absences become frequent, you can still manage the situation - but you need to do it carefully.
Common lawful steps include:
- having a private check-in meeting (not a “warning meeting”);
- asking if there are workplace adjustments that could help;
- seeking medical input (with the employee’s consent) about fitness for work and any recommended accommodations;
- documenting what’s discussed and agreed.
If performance issues are involved, it’s especially important not to skip process. A good performance management approach is structured, evidence-based, and fair - performance management is an area where employers often benefit from legal guidance early, before the relationship becomes strained.
Step 5: Don’t Accidentally Create A “Different Rule” For Mental Health
Many employers mean well but accidentally apply inconsistent standards, such as:
- accepting physical illness sick leave without question, but interrogating mental health sick leave;
- allowing one employee flexibility but refusing another without clear reasons;
- sharing details in an attempt to “explain” the absence to co-workers.
Consistency, privacy, and respectful communication are usually your safest and fairest path.
Can You Refuse A Mental Health Day Or Discipline An Employee For Taking One?
Sometimes employers ask: “Can I say no?” or “Can I issue a warning for this?” The answer depends on the facts, but here are the general principles.
If The Employee Is Entitled To Sick Leave And Is Genuinely Unwell
If the employee is genuinely unwell and has sick leave available, it’s usually not appropriate to refuse the leave or treat it as misconduct.
Your focus should be:
- confirming the correct leave category;
- requesting medical evidence where lawfully required/appropriate;
- planning coverage for the day.
If You Have Evidence The Sick Leave Is Not Genuine
If you have credible reasons to believe the employee is not genuinely unwell (for example, clear evidence of misuse), you may be able to investigate and manage it as a conduct issue.
However, “credible reasons” is not the same as suspicion or frustration. You still need a fair process - and you should be careful not to create a situation where an employee feels punished for having mental health needs.
If The Absence Creates Operational Problems
Operational impact doesn’t automatically make the leave “invalid”. But if absenteeism becomes ongoing and affects the role, you may need to consider a broader management process, which could include:
- medical incapacity processes;
- role adjustment discussions;
- in some cases, termination (only after a proper process and consideration of alternatives).
This is one of those areas where getting advice early can save you headaches later - because a rushed or unfair decision can increase the risk of a personal grievance. If termination becomes a realistic possibility, you’ll want to approach it carefully, and resources like termination can help you understand what a lawful process often involves.
What About “Just Take Annual Leave Instead”?
Some workplaces encourage annual leave for “wellbeing days”. That can work if the employee agrees and it’s consistent with your policies. But if the employee is actually unwell, sick leave is usually the more appropriate category.
It’s also important to know that employers can’t simply force annual leave whenever it’s convenient - there are rules around when and how annual leave can be directed, and it often depends on what your employment agreement says and whether a proper notice process is followed.
Key Takeaways
- A “mental health day” isn’t usually a separate legal category of leave in New Zealand, but it is commonly taken as sick leave when an employee is unwell due to mental health reasons.
- Under the Holidays Act 2003, employees can generally use sick leave when they’re not well enough to work, and employers can request medical evidence in certain situations (such as 3+ consecutive days away).
- Employers have health and safety obligations under the Health and Safety at Work Act 2015 that can include psychological health, so workplace stress and burnout risks shouldn’t be ignored.
- Mental health-related leave should be managed with good faith, consistency, and fairness, especially if the absences become ongoing or performance concerns arise.
- Health information is sensitive - employers should keep mental health-related details confidential and handle them carefully under the Privacy Act 2020.
- If you’re unsure whether to treat an absence as sick leave, request medical evidence, implement adjustments, or begin a formal process, it’s worth getting tailored legal advice before the situation escalates.
If you’d like help reviewing your leave processes, employment agreements, or how to manage mental health-related absences fairly, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.
