Ask Avvo: Should I get involved with my employee’s mental health issue?

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Q: I’m the owner of a small business, and I suspect one of my employees is struggling with mental health issues, possibly depression. As an employer, what is my legal responsibility to intervene or offer support? Or, am I supposed to respect employee privacy and ignore the issue?

A: The answer to this question lies in whether you, as an employer, are under a legal duty to protect your employees from potential harm and risk caused by the side effects of mental health issues.

The very general answer is no. It is not your responsibility or legal duty to intervene in the mental health issues of your employee, unless you know or should have known that the employee was likely to cause harm or injury to others in the workplace.

If you think there is a risk to others, the answer and your exposure to liability may change.

Exceptions: Understanding the employer’s duty of care

There may be exceptions to the general rule. For instance, Occupational Safety & Health Administration regulations impose a general duty on employers to provide workers with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.

Therefore, if you have actual knowledge that your employee intends on harming other workers, at that point you are under an obligation to protect those workers and take steps to remove the risk of danger. Likewise, most states maintain a common law requirement mandating that employers mitigate foreseeable risks and hazards.

Intervene only if there is a risk to others

In sum, you are only legally required to intervene with your employee if and when that employee presents a risk of harm to others on the job. Otherwise, intervention is at your own discretion.

If you do choose to intervene, be extremely cautious to avoid any breach of confidentiality with regard to your employee’s condition.