Stressed? An Employer’s right to Ask

At a recent networking session, the topic of an employer’s rights and responsibilities regarding managing the often-uncertain area of psychosocial risks in the workplace was raised.

Stress and psychosocial injuries are increasing as a percentage of workers’ compensation claims. On average, 13% of a company’s claims are stress based, but account for 25% of their total claims’ costs.

Studies suggest the majority of stress-based claims arise from issues connected to the employee's home life, emotional state and personal circumstances, and employers are often uncertain about their rights and responsibilities in these circumstances.

The employer's duty of care is clear. Under health and safety legislation, you are required to identify hazards which could potentially cause harm in the workplace, including psychosocial risks, assess the level of risk and institute appropriate controls.

So given we have a duty of care to identify and monitor psychosocial risks, including stress, if the signs of stress in a worker are clearly observable, then you are obligated to do something about it. How then do we have conversations with employees about their mental health or stress levels, and what do employers do when they say “no, it’s personal”?

If there is a genuine concern and doubt about someone’s ability to work safely, then your response is clear. Discuss your concern with them openly, respectfully and with genuine care. If the risk posed is severe enough, you may need to request that they undergo a medical examination to assess their fitness for work.

In order to ensure that this process is lawful and reasonable, it is recommended that companies ensure:

• Managers and supervisors are coached to identify the signs of mental health risks.

• Managers and supervisors are trained in how to communicate well and with empathy.

• There are no biases or predetermined outcomes when requesting employees undergo an examination.

• Clear job descriptions are in place which outline the inherent requirements of the role.

• Employees are encouraged to speak to their supervisor, or a good friend, on order to seek help at work.

• Employees are reminded of their responsibilities to ensure they are fit for work and inform their employer about any issues which might affect their ability to perform their work safely.