Mental Health Law Quest August 1

Mental Health

There has been so much publicity about mental health recently, and this got me thinking: can you please draft a clause that I can use in my employment contracts? I want to be able to send my staff to get a mental health check done if I feel it necessary. If they refuse then I want to be able to discipline them for refusing to follow instructions. And if the medical assessment warrants it I need to be able to dismiss employees on the basis of their medical illness.       

There are two responses to this question:

  1. We cannot and will not draft such a clause. Not only do we consider it to be immoral and unethical, but it’s also illegal. The Employment Equity Act prohibits any form of medical testing that cannot be justified. And if you dismiss someone on this basis the LRA allows the employee to claim compensation of up to 24 months of their salary due to the unfair discrimination.
  2. From this question, it is clear that you do not fully understand mental health issues. A diagnosis of a mental health illness does not render an employee incapable of doing their job. Indeed it’s possible that your star performer may have a mental health condition that they haven’t disclosed (and there is absolutely no reason why they should be required to disclose it.)

If your employee is diagnosed with a mental illness this means that they are able to seek the appropriate treatment for their medical condition. This information cannot and should not be used against them. As with every other medical condition out there, there are very, very few situations where the employee may be required to disclose their condition. And if they do disclose their condition, this information is to be treated confidentially and with sensitivity.