Employer Obligations: Mental Health
As an employer, you have a duty of care for both the physical and mental health of your employees’ health.
Health and Safety at Work Act 2015 (HSWA): Under the HSWA, you have an obligation to minimise the stress and mental health impacts that arise from within your workplace. This includes monitoring increased workloads to ensure your employees are not overexerted and stressed, investigating any bullying claims and ensuring a safe working environment.
Employees’ rights: Your employees are not obliged to disclose a mental health condition unless it will directly impact their ability to safely perform their role. If you ask about a mental illness that directly impacts their ability to perform their role safely, they must tell the truth. There is a risk of disciplinary action if they do not provide you with the correct information.
You cannot discriminate against any employee (or potential employee) if they have a mental illness. These discriminations could be:
• Not offering a job due to their disclosed mental illness
• Not promoting as a consequence of their mental illness, or
• Providing less favourable terms of employment as a result of their mental illness.
Employee action for perceived discrimination: If your employee believes they are being discriminated against, they may wish to discuss this with you to try and resolve the matter. If this is not successful or not appropriate, they can seek support from the Employment Mediation Services, raise a personal grievance or make a complaint to the Human Rights Commission.
What can employers do? You can help to facilitate a positive working environment and take steps to protect your employees by:
• Providing support if a traumatic work event occurs
• Offering flexible working environments including hours/days worked and the location for work to be completed by, for example, using other machines
• Allowing time off to attend appointments
• Providing resources such as counselling, work mentoring or stress management courses, and
• Changing your employee’s duties.
It is important that you talk with your employees and take necessary steps to support them the same way you should protect their physical wellbeing.
DISCLAIMER: All the information published is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this article. Views expressed are those of individual authors, and do not necessarily reflect the view of this firm. Articles appearing in this newsletter may be reproduced with prior approval from the editor and credit given to the source. Copyright, NZ LAW Limited, 2019. Editor: Adrienne Olsen. E-mail: adrienne@adroite.co.nz. Ph: 029 286 3650 or 04 496 5513.