What are your workplace mental health legal obligations as a manager and/or business owner?
Given that one in six working Australians will experience a mental health condition in their lifetime, it is highly likely that as a manager or business owner you will be responsible for managing an employee with a mental health condition in your workplace, therefore, with the recent introduction of the new regulations of the Model Code of Practice on Managing Psychosocial Hazards at work it is critical that you understand your workplace mental health moral and legal obligations.
Part of effectively managing workplace mental health in your organisation is understanding and appropriately applying the legal responsibilities an organisation has in relation to mental health conditions. This is important to ensure:
- Each employee is appropriately and fairly supported;
- You manage your personal risk; and,
- Business risk is minimised.
In understanding your workplace mental health legal obligations, it is important for organisations to recognise that their workplace mental legal responsibilities are relevant if an employee has developed their mental health condition:
- Prior to employment;
- During employment;
- Outside of the workplace;
- Due to a workplace incident, or
- As a result of a longer-term workplace issue.
In fact, whatever the circumstances of an employee’s mental health condition, the workplace’s mental health related legal obligations extend to any worker with a mental health condition.
Therefore, understanding your legal obligations in relation to workplace mental health is important to make sure that you are complying with all applicable legislative requirements when supporting an employee with a mental health condition in your workplace.
Poor compliance results in not doing the right thing by employees and exposes the business to a higher risk of successful workplace health and safety claims. To ensure you are doing this, there are six key areas of law that are important to know.
1. Workplace Health and Safety
You have an obligation under workplace health and safety legislation and at common law to provide a safe and healthy workplace, and to take action to prevent or lessen potential risks to the health and safety of all workers and visitors. This obligation applies equally to physical and mental health and safety, Code of practice includes ensuring an employee with a mental health issue is not harassed or victimised. With the introduction of the new model Code of Practice on Managing Psychosocial Hazards at work, providing your managers and employees with mental health in the workplace training is a great proactive approach to help increase awareness of mental health roles and responsibilities in the workplace.
2. Reasonable Adjustments
Workplaces are required to make reasonable adjustments to the work environment and/or the employee’s role and responsibilities to enable an employee with a mental health issue to do their job (i.e., that is, to meet the basic inherent requirements of the job). A reasonable workplace adjustment is one that doesn’t cause an employer ‘unjustifiable hardship’. Unjustifiable hardship is determined by considering the degree of disadvantage a workplace adjustment would cause to the employee, employer, or other employees.
3. Inherent Requirements
The inherent requirements of a job are those responsibilities or skills that are essential to the role. An employer is required to determine if an employee with a mental health issue can meet the inherent requirements of the job, both with or without reasonable adjustment. To determine if an employee can meet the inherent requirements of a role or not, it is important that a thorough and consultative process is followed.
4. Discrimination Legislation
The Commonwealth Disability Discrimination Act 1992 and applicable state and territory laws make it unlawful to discriminate against, disadvantage in anyway, harass or victimise someone, or someone associated, with a disability. In accordance with the Act, this includes workplace mental health issues. Failing to make reasonable workplace adjustments or genuinely search for work role alternatives may be viewed as discrimination. Behaviour that could reasonably be seen to offend, humiliate, intimidate or distress someone, or sees them be treated unfavourably or unfairly in anyway due to the employee’s mental health issue are indicators of harassment and victimisation, and are unlawful.
5. Commonwealth Industrial Law
Under Commonwealth Industrial Law, the Fair Work Act 2009 (Cth) directs that employers cannot take adverse action against an employee with a mental health condition.
An employee may take action against an employer under the Fair Work Act (2009) and applicable state and territory Fair Work Act if they perceive they have been the subject of adverse action and they believe this action is unlawful. Whilst not all adverse action is considered unlawful under the Fair Work Act, employers should be aware of how their obligations apply when dealing with workplace mental health issues under the Fair Work Act. It is advisable to consult legal advice pertaining to any specific circumstances with respect to commonwealth industrial law and adverse action
6. Privacy Obligations
The Commonwealth Privacy Act (1988) (Cth) and similar state and territory legislation, as well as implied contractual obligations and equitable principles, dictate that information about an employee’s mental health issue should not be disclosed without their expressed consent, and then only disclosed for the purpose it was disclosed. Further, as with any illness, you can only ask questions about an employee’s mental health condition to the extent that it is for a legitimate purpose (e.g., to implement reasonable workplace adjustments or comply with health and safety regulations) and this information cannot be adversely used.
The exceptions to these privacy obligations, which requires a reasonable assessment of the specific circumstances of an employee, are when disclosure of the employee’s mental health condition will prevent or minimise an immediate threat to the individual or someone else, or if the disclosure is authorised by law.
Be Proactive About Workplace Mental Health…
Being proactive in creating a psychologically healthy and safe workplace is one of the best steps an organisation and manager can take so that:
- a culture is developed where mental health conditions are not created or exacerbated
- employees who do have a mental health condition are supported in helpful and constructive ways.
- you meet both your moral and legal obligations and responsibilities with regards to workplace mental health.
If you or someone you know needs help contact your organisation´s Employee Assistance Program (EAP), your GP or call LifeLine on 13 11 14; Kids Helpline on 1800 551 800; MensLine Australia on 1300 789 978; Suicide Call Back Service on 1300 659 467.
Disclaimer: The information provided in this document is not intended to be legal advice and should not be interpreted as such. Managers and businesses should seek appropriate counsel from relevant HR and legal personnel if they do not feel they have the applied knowledge for lawfully managing mental health issues in the workplace. In addition to the information provided, it is important to be fully aware of all relevant legislations and the requirements in your specific state or territory and your organisations applicable policies and procedures.