By Godfrey Kenneth Beni
You have relied on Thandie as your best accountant for the last seven years. She never misses a deadline. She does not skip work. Then something shifts. She withdraws. She makes errors that are not typical of her.
In the same month, she misses work twice due to “migraines”. She eventually confides in you that she is failing at everything, has trouble falling asleep and is afraid to go to work. She asks to take a vacation. Not due to any physical illness. To ensure that her mental health is protected, doing the right thing is vital for everyone.
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Burnout, anxiety or depression are not mentioned in Section 46 of the Employment Act when you search for sick leave. A certificate from a licenced medical professional is required by law and it must state “the nature of the employee’s incapacity”. It does not define what mental health condition qualifies as an incapacity. How do you proceed?
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Section 46 of the Malawi Employment Act of 2000 makes it quite clear that an employee who has worked continuously for 12 months is entitled to four weeks of full-pay sick leave and eight weeks of half-pay leave. A medical certificate may be requested by the employer. That is where the situation becomes unclear.
The Act does not define “sickness”. It makes no mention of whether or not mental conditions are included. It ignores mental harm, burnout and stress leave. It does not request that companies offer mental health first aid, employee support programmes or counseling services. Not even the term “mental health” is mentioned.
Prior to this, in 2000, there was a problem with the lack of communication. Twenty-six years later, everyone knows that stress at work is a global health concern and the silence is unacceptable.
In the absence of a clear mental health policy, employees are faced with a challenge. Malaria, shattered bones and food poisoning all qualify for sick leave. They are tangible. They exist. But should I tell my boss that I have anxiety or depression and run the risk of coming out as weak, untrustworthy or challenging? Or do I fabricate my symptoms, claim to be physically ill and hope that no one challenges me?
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Many employees choose to lie. They claim to have a “stomach bug” when they are depressed and unable to get out of bed. In times of panic, they suffer from “malaria”. They use up all of their sick leave and/or conceal themselves in places that need enough assistance.
However, they quit their jobs or just lose it when they have to lie so much that it wears them out to stand. Employers are also not helped by employee ambiguity. You must watch out for your employees. It is crucial that you do not penalise someone for having a medical issue. But in the absence of any legislative regulations, you will have to wait and see. Can you obtain a mental health examination? Can you take sick time for stress since it is a legitimate illness? Can a person who has used up all of their sick leave due to depression be fired by their employer? Every choice carries some legal risk.
At last, this is the actual problem. Mental health problems frequently go unrecognised. A broken leg is obviously a physical condition that an employee cannot perform. Even though a very anxious person may seem completely normal, their neurological system is unable to handle the situation on the inside. Employers are excluding mental health injuries, whether on purpose or accidentally. Whether they realise it or not, employers are routinely ignoring mental health injuries.
There is no explicit precedent regarding whether mental health issues fall under the criteria of sick leave in Section 46 of the Act.
However, other sections of the statute contain certain guiding principles. Section 57(3)(c) defines “absent from work” as “because of sickness or injury”, which is not a legitimate reason for termination. The clause does not distinguish between mental and physical illnesses. The common definition of “sickness” in a court of law would encompass mental illness.
The World Health Organisation defines health as “a state of complete physical, mental and social well-being”. Malawi has ratified international labour agreements that recognise mental health as an essential component of overall health. A court considering Section 46 would consider these standards. Section 5 contains an anti-disability discrimination policy.
Malawi has ratified the Convention on the Rights of Persons with Disabilities, which recognises persistent mental impairments as a type of disability. An employer may be subject to a discrimination lawsuit if they reject an employee’s request for sick leave due to depression or fire them after they have missed numerous days of work owing to depression.
Once more, constructive dismissal under Section 60 is available. An employee may be able to argue that it was unreasonable for the employer to expect them to continue working if they resign owing to the employer’s actions after being denied sick leave because of a real mental health problem. The Industrial Relations Court has not taken into account any of these arguments. But a prudent employer would have to assume that mental health concerns are—or will soon be—covered.
Even if it is not stated in the legislation, the reality at work differs from the legal reality. The primary cause of occupational absenteeism worldwide is mental health disorders. One of the main causes of disability is depression. The World Health Organisation has acknowledged burnout as a problem that occurs in the workplace. Your employees are having problems. Some people are battling silently. Others are claiming physical health while utilising mental health sick leave. Some are underperforming as a result of not taking any time off. “Yes, mental health impacts your work” is the response. Yes, it does.
The fundamental question is whether you will respond to a crisis in a proactive or reactive manner. Certain provisions that are absent from Malawi’s current employment law should be included in a new one. It will make it very clear that both physical and mental health conditions are acceptable causes of absences. It would define “burnout” as a condition brought on by the workplace that requires the employer’s care. For workers with mental health concerns, it would require appropriate adjustments such as flexible work schedules, reduced workloads and/or temporary remote employment.
Discrimination based on mental health will not be permitted. Policies pertaining to workplace mental health, such as therapy and/or employee assistance programmes, would encourage or mandate it. Malawi’s current legislation does not include any of this. It is not a prohibition, of course, but that does not mean it is not forbidden. Employers are not required to use these procedures, although they should if they so choose.
Until you have the law in place, you need a workable framework that will protect your company and its workers. Mental health is, first and foremost, health. Establish a policy that permits mental health disorders to be covered by sick leave in the same manner as physical conditions. Never ask a worker what their diagnosis is. It is because they do not work, not because they cannot.
Secondly, ensure that it is supported by a sufficient number of medical certifications. Section 46 provides for obtaining a certificate from a licensed physician. When a general practitioner evaluates and certifies an employee as unsuitable for work due to mental health issues, sensitive information about the clinical condition is not disclosed. Note: Just stating that the patient is anxious and thus unable to serve for two weeks is sufficient; the specifics of the anxiety should not be disclosed.
Thirdly, train your supervisors in how to recognise the symptoms. These behaviours can all be indicators, as can diminished performance, absenteeism and despondency. It is the manager’s responsibility to show concern rather than to enforce rules. “I have noticed you seem tired lately; is everything okay?” is a better way to start a conversation than an oral caution.
Creating a plan for returning to work is the fourth. A gradual return, adjusted work schedules, temporary position changes, or ongoing counseling may be beneficial for an employee who has returned from sick leave due to a mental health issue. Keep a record of the plan. Regularly review it. Make any necessary adjustments.
Fifth, make sure that justifiable non-participation is not penalised. It should not be assumed that an employee has engaged in misbehavior if they have used their four weeks of paid sick leave due to depression. Talk to the worker about the possibility of a fair accommodation, such as additional unpaid leave or less hours. There can be a legal obligation to make accommodations if the condition is determined to be a disability.
Sixth, undertake preventative investments. Excessive workload, a lack of control, insufficient rewards, unfair treatment or management, and unsupportive management are the causes of burnout. Address these root sources of the issue. Teach managers how to spot “overload” symptoms in employees and take action to keep them from blowing up. Encourage employees to take yearly leave, please. Set a positive example for others to follow.
Seventh, take great care to meticulously document everything. Make sure to document the grounds for any denials of mental health sick leave. Make sure to document your efforts to accommodate the employee, the impact on operations, and the fact that you were unable to locate a reasonable substitute when you fire an employee whose mental health rate exceeds the legal level. Your choice will seem to be discriminatory if you lack supporting documentation.
There are acceptable limits. It is possible that an employee who claims to have mental health issues but travels, participates in social events, or has a second job is not truly mentally unfit. The employee may be abusing the system if they continue to take mental health sick days on Mondays and Fridays. An employee will not meet Section 46 criteria if they refuse to see a doctor or provide a certificate.
But be cautious. Mental health conditions are always evolving. A person with depression at work may have both good and terrible days. Even if an individual is unable to work in the morning, they can still be productive in the afternoon. An individual is not necessarily qualified for their job just because they attended a social event. Get a second opinion if you are unsure about a claim’s veracity. Consult a licensed physician with expertise in mental health concerns. Never base a diagnosis solely on observation.
In the future, Parliament may amend the Employment Act to include provisions for mental health. But your workers need assistance right now, not after a protracted, potentially years-long legislative process. Here’s what you ought to do today. Check your sick leave policies first. Edit it if it doesn’t specifically address mental health. Make it clear that mental health conditions fall under the definition of “sickness” and that any licensed medical professional may sign a medical certification.
The second is to provide your managers with training. Give kids the vocabulary to talk about mental health concerns without stigmatizing them. Assist them in differentiating between problems that call for accommodations (health) and those that call for discipline (performance).
Thirdly, compile a list of resources for mental health. Locate counselors, psychologists, and support groups in your area. Distribute the personnel list in a private way to every employee.
Fourth, consider employee support initiatives. Because of increased productivity and decreased absenteeism and employee turnover, a simple initiative like offering a few free counseling sessions to each employee annually is already turning a profit for the company.
Fifth, review your workload. Are your top employees growing weary and exhausted? Consider turnover, unused leave, and overtime hours working. Any of these with high numbers would point to a matter that Parliament could discuss.
Finally, consult a labour official or an expert in employment law if you are unsure of how to handle a certain circumstance. We still have a lot to learn about mental health. Prevention is preferable to treatment, and sound counsel now prevents litigation.
The Employment Act makes no mention of whether depression, anxiety, or burnout are disorders related to the workplace that qualify for sick leave. However, the large legal loophole does not excuse mental health neglect. Your staff is keeping an eye on you! They are aware of your perspective on mental health and how vital you believe it to be. They are aware of whether they must exploit physical ailments to obtain time off or whether they are able to tell you the truth. They know if you will assist them when they fall or punish them for doing so.
Employers who are “leading” while the law is in the background are the ones who “will” prevail in the talent battle. They will treat mental health in the same way that they treat physical health. Before punishing, they will make accommodations. They will realise that by helping a depressed worker, they may get them back on the job far sooner than if they were compelled to lie, hide the issue, or quit the company.
It is too late to wait for the act to be amended. Your staff members are exercising! Some people feel nervous. Some people are depressed. Some people are unsure of the truth and question if you can be trusted with it. What will you do if they ask for help?
The author is a human resource practitioner
Feedback: kennethbeni35@gmail.com
