Feature article

Supporting the mental health of your employees

What does an employee have to disclose about their mental health? Legal and medical experts share what you need to know.

We are thrilled that mental health and its importance is becoming more recognised and talked about everywhere from the Government to day-to-day peer conversations. But for many of us, navigating conversations in the workplace is still quite new.

Today, employers have a responsibility to provide a workplace where all employees, including those with mental health challenges, from ADHD to depression, can thrive. If you don’t, you can face legal action, substantial payouts and bad feeling among your employees, so it’s a good idea to know what is expected of you.

Penelope Ryder-Lewis and Carolyn Heaton from employment law firm, Bartlett Law, and specialist occupational physician, Dr Simon Ryder-Lewis from Work Health Solutions have answered some questions on how to give your employees the best support possible.

They say that if you support your employees’ mental health, the rewards can include:

  • Reduced legal risks
  • Happier employees
  • Less absenteeism
  • Greater productivity
  • Reduced staff turnover
  • Reduced accident risk

Does an employee have to tell you if they have a mental health condition that can affect their ability to do a job?

Prior to employment

An employer can only ask a prospective employee for information about their health, including mental health, if it will directly affect their ability to do the job. For example, a phobia of blood is relevant to a vet practice, but not to an employment law firm in the CBD.

For something like general anxiety disorder, it will depend on whether the anxiety or depression directly affects the applicant doing the work, or might affect them doing the work. Well-controlled anxiety or depression could have no discernible effect on some work/workplaces. The prospective employee will need to make a judgement call on whether or not to disclose it. If they reasonably consider that it won't impact their work, then they could choose not to refer to it.

However, if a prospective employee wants an employer to provide services and facilities to meet their health needs, where reasonable, it’s a good idea for the prospective employee to be upfront in the interview.

If someone isn’t chosen for a role and they believe it’s because they’ve disclosed a health condition, the Human Rights Act makes discrimination, on the basis of disability, unlawful. A disability could be physical, intellectual or psychological. Treating a prospective employee differently due to disability may be OK if there’s an unreasonable risk of harm to, or infection of, others in the workplace, or the disabled person can’t perform the requirements of the job without the employer providing services and equipment which would be unreasonable for them to provide.

At contract stage

Some employee agreements include the employee confirming that they haven’t deliberately withheld any information that may have materially influenced the employer’s decisions to employ them. An employee with a relevant mental health condition should disclose that condition before signing the employment agreement.

If their mental health condition means the prospective employee isn’t fit for the job, they shouldn’t be applying for the job. This is particularly important in safety sensitive roles, for example a bus driver. Not only could the mental health condition itself be of potential concern in this case, but also the side effects of medication may be an issue, for example, if it causes drowsiness.

During employment

If an employee receives a diagnosis of a mental health condition during their employment, it’s best for both employer and employee if this is discussed openly between them.

So it’s important for employers to develop a workplace culture that’s open and supportive of these kinds of conversations. For example, are there policies that set out that the employer encourages support and assistance? You could consider having a nominated person in the company for affected employees to approach, for instance, which works well if they don’t wish to speak directly to their manager in the first instance.

If the mental health condition is likely to affect the employee’s ability to do their job, they must tell their employer. Sometimes an employee may not be aware that their condition could cause issues at work. You can manage this situation by encouraging employees to discuss the nature of their role with their doctor if they’re diagnosed. It’s also important that the employer encourages staff to discuss their condition with managers in confidence. It will be the employer’s responsibility to decide who in the organisation needs to know.

How can you manage your employees so they feel supported in their job and working under the best conditions for them?

Schedule and encourage regular one-on-one conversations and check-ins with your employees. Make sure they know it’s safe for them to come and talk to you or the designated manager in the workplace if they have any problems or issues.

Have good policies and make sure you follow them. For example, say in a policy that the employer supports all employees to work to the best of their ability, and if they feel there is something affecting that, set out clear processes and contact people who employees can go to for information and a non-judgmental chat.

You can also encourage training or upskilling and make sure employees take their annual holidays.

Do you have to provide access to mental health support to your employees as an employer?

What the employer needs to do depends on whether the employee has a mental health disability or not.

If the employee has a mental health disability that the employer knows about, the employer must take steps to reasonably accommodate that disability.

If the employee doesn’t have a diagnosed mental health condition but says they’re feeling stressed, or under too much pressure, the employer will need to provide them with appropriate mental health support.

In both these situations, the employer must decide what is reasonable and appropriate in all the circumstances, weighing up relevant information from the employee, the employee’s doctors, or other experts.

The employee may be able to access support such as an Employee Assistance Programme (EAP). It could be discussed with the employee whether this would be helpful for them. In other cases, it may be about allowing employees to take reasonable time off during the day to visit counsellors or other medical professionals.

Can employees sue you for allowing psychosocial hazards in the workplace?

Fatigue and bullying are examples of psychosocial hazards in the work environment that can cause stress or interpersonal problems for employees. If an employer fails to address hazards like these, and the hazards have caused an employee mental harm, they might be at risk of legal claims.

If the employee says to their employer that they’re suffering from unreasonable fatigue caused by the workplace, then the employer will need to investigate that, perhaps by seeking the expertise of a doctor and then making a decision about what needs to be done. If the employee doesn’t agree that the employer is taking reasonable steps, then they may raise a personal grievance.

Possible claims an employee could make against their employer include claiming that their health was harmed by the stress and this is a breach of their terms of employment or is a personal grievance. An employee could also contact WorkSafe who could prosecute under the Health and Safety at Work Act 2015 for harm caused by the hazard.

The Bartlett Law team has seen many examples of these claims. There have been court cases where substantial financial compensation have been awarded to employees who have had their mental health damaged by psychosocial hazards in the workplace.

Looking for more information on this important topic? Penelope, Carolyn and Simon are running the Snapshot Series, a free webinar series on employment and health for businesses and HR professionals. A webinar on pre-employment medical checks and medical questions will be held at 3pm on March 26: Email lawyer@btlaw.co.nz for more information.

Disclaimer: this information is general only and does not constitute and is not a substitute for legal advice or medical advice. No liability of any kind is undertaken by Bartlett Law or its solicitors or Work Health Solutions Ltd to any person in respect of this information.

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