By Jeff Salton

A lot of attention is given to employees who present at the workplace suspected of having illicit drugs in their systems. But what about workers who take prescription medication for depression and other psychological issues?

What can you do if you suspect an employee’s ability to work is being affected by prescription medication … especially if the employee in question has admitted to be suffering from a mental illness, like depression?

Are you able to request that workers disclose the number and types of medications they take? Do you have to ask your workers if you can set up a register to cover all types of legally prescribed medications for emergency services to refer to in case of an accident?

Lawful and reasonable

Health & Safety lawyers at Macpherson Kelley advise that if you are concerned about the possible effect of any prescription medication on your workers’ ability to perform their duties safely, you can direct workers to inform you of any such medications. This would be a lawful and reasonable direction. It is also something that could be included in any drug or alcohol policy in your workplace.

The lawyers say if the prescribed medication is not something that affects workers’ ability to perform their duties at work, you cannot compel your workers to provide the details of their medication. However, you could request that workers voluntarily notify you of any medication they are taking, which is to be used in the event of an emergency.

If you are generally concerned by the health and welfare of some of your workers, subject to your employment contracts, policies and procedures, you may be able to direct a worker to attend a medical examination to assess the risk to their health and safety (and that of others) in continuing to perform the inherent requirements of their roles. This falls within your duty to ensure the health and safety of your workers. Any request for a worker to attend a medical examination must be reasonable in the circumstances.

Tread carefully

The lawyers say it is important to note that mental illness is defined as a disability under anti-discrimination legislation and any actions that you may take that treat these employees any less favourably than other employees may give rise to a discrimination or adverse action claim under the general protections regime of the Fair Work Act 2009 (Cth).

That’s another reason why business-owners and managers need their copy of the Mental Health at Work – a 38-page eBook is written in clear terms by three leading advisers on risk management and workplace mental health. It will help you:

• understand mental illness;
• be aware of the effects of mental illness on your business;
• understand your legal obligations in regard to managing mental illness;
• identify mental health risks among your workers;
• understand how to minimise mental health risks in your workplace; and
• handle a situation involving a mental health issue in your workplace.

In recent years, the prevalence of mental illness in our society has become frighteningly apparent.

While this is a complex and sensitive issue, there is a critical role you can play in helping to create awareness about mental illness and to promote mental health in your workplace.

In fact, as an employer or manager of staff, you have a legal obligation to do so…