The Legal Risks of Offering Mental Health Days

Employee stress continues to rise, and many workers say their jobs are taking a toll on their mental health. In SHRM’s 2026 Mental Health Snapshot, 40% of U.S. workers said their jobs frequently make them feel stressed, up from 31% the previous year, while 27% reported feeling anxious because of work.

Against that backdrop, some employers are considering “mental health days” as a way to give employees time to recharge and demonstrate support for well-being.

But while the intent is positive, the terminology itself may create unnecessary legal risk.

Rather than establishing a formal “mental health day” policy, many employers may be better served by offering flexible paid time off (PTO) and encouraging employees to use it to support their overall well-being.

Toolkit: Creating a Mental-Health-Friendly Workplace 

Why Mental Health Days Are Gaining Traction

The rise of mental health days reflects a broader shift toward flexibility and employee-centered benefits.

The benefit is “a byproduct of employers’ need and desire to provide flexibility to employees, both regarding schedules and remote/hybrid options,” said James Paul, an attorney with Ogletree Deakins in Tampa, Fla.

He noted that these days are often similar to “personal holiday” or “floating holiday” paid time off benefits that employers may traditionally provide to employees at or for their employment anniversary dates or birthdays. They are frequently implemented alongside wellness programs intended to reduce workplace stress.

For employers, the appeal is clear. Mental health days can support burnout prevention, reinforce a culture that values employee well-being, and help organizations remain competitive in recruiting and retention. Notably, SHRM found that half of U.S. workers have considered leaving their jobs at least occasionally because of the impact work has on their mental health.

At the same time, employers should recognize that employees may use PTO for a wide range of personal needs, whether that means resting, attending medical appointments, or simply stepping away from work for a day.

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Why the Label Matters

Although the concept resonates with employees, the phrase “mental health day” can introduce compliance concerns.

Paul said he “usually caution[s] against the informal and casual use of the term ‘mental health’ in the workplace because the Americans with Disabilities Act (ADA) prohibits discrimination, harassment, or retaliation against disabled employees — and mental health conditions (either disclosed or hidden) are protected by the law.”

According to Paul, the casual use of the term could be interpreted as demeaning to employees with diagnosed mental health conditions.

Instead, he said, employers may want to use more traditional terminology such as “PTO days,” “vacation days,” “personal holidays,” or “sick days.”

This approach allows organizations to offer the same practical benefit without creating ambiguity about whether the leave is tied to a medical condition.

When Time Off Triggers Legal Obligations

A key compliance issue is understanding when a routine day off becomes legally protected leave. “This is why the phrase ‘mental health day’ is somewhat dangerous,” Paul said.

He explained that an employee’s disclosure of a true mental health condition “as opposed to the flippant use of a paid day off because the employee wants to catch on personal errands, home repairs, go shopping, go hunting, or catch up on sleep — absolutely can trigger FMLA [Family and Medical Leave Act], ADA, and various state law requirements and protections.”

In most cases, a single unscheduled absence will not implicate the FMLA. However, Paul noted that such an absence could trigger FMLA obligations when it is taken or used due to a chronic medical condition, including a mental health condition, that causes the need for intermittent leave or time off.

Employers should also keep in mind that many state and local paid sick leave laws allow employees to use accrued leave for mental health treatment and related care.

Documentation Requests Require Caution

Some employers may wonder whether they can ask employees to provide documentation when they take a mental health day.

Paul’s guidance is direct: “If an employer decides to proceed with or maintain a ‘mental health day’ benefit, nothing more than an employee raising their hand and using that benefit should be required.”

Requiring documentation for a stand-alone benefit could blur the line between a discretionary PTO benefit and a protected medical leave request.

“Otherwise, it appears to be something that is an actual FMLA, ADA, or ‘sick day’ absence that will trigger those legal obligations,” Paul said.

In other words, if employers want to offer a casual wellness benefit, they should keep administration simple.

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Addressing Abuse Concerns

Employers may worry that employees will misuse mental health days. Paul, however, said abuse is difficult to define if the policy is informal and clearly limited.

“If there is an informal, casual ‘mental health day’ policy in place, there really is no way for an employee to ‘abuse’ it — unless they are taking or requesting more days than what the policy allows.”

He compared it to any other PTO benefit: using more days than allotted is a policy issue, while using the benefit as intended is not misconduct.

Consistent administration is critical. Employers should apply attendance and leave policies uniformly and avoid making assumptions about an employee’s health status based on their request.

HR Q&A: When Can Employers Require or Limit PTO Use? Key Guidelines

Designing a Low-Risk Policy

For many employers, the simplest approach is to avoid creating a separate mental health day category altogether.

“The confusion caused by using the term ‘mental health’ is a big enough risk that should cause most employers to decide to simply provide ‘PTO days,’ ‘personal holiday,’ ‘floating holiday,’ or ‘sick days’ per the traditional types of policies and benefit offerings that are offered to employees,” Paul said.

Employees can access the same benefits and enjoy the same effects without the compliance risks associated with using, according to Paul, “a loaded and potentially legally significant term.”

Sample Policy: Paid Time Off (PTO) with Accrual and Carryover Provisions

Practical Takeaway for HR

Mental health days can be an effective way to support employee well-being, but the terminology may create more legal complexity than value.

HR professionals should consider whether their existing PTO, sick leave, and wellness benefits already provide the flexibility employees need. In many cases, encouraging employees to use available paid time off for rest and recovery can achieve the same objective while minimizing compliance risk.