Do Employees Have To Disclose If They Are Taking Anti-Depressants?

Navigating mental illness in the workplace can be a tricky situation for both employee and employer. From your employee’s perspective, it can be hard to admit that they’re struggling with mental illnesses such as depression, and they may not feel entirely comfortable sharing that with their manager or business owner. From your perspective as an employer, it can be difficult knowing what’s an appropriate level of support and how proactive you ought to be in supporting your employee – especially if they haven’t approached you first. But do employees have to disclose if they are taking anti-depressants?

Disclosing A Mental Illness In The Workplace

In most cases employees are not legally obliged to tell you about their mental health issues because they have a right to privacy. In these cases, it would also be inappropriate for you, as the employer, to ask them in an official capacity, even if you’ve noticed certain symptoms and are hoping to support them. If you’re friends outside of work and are concerned for their welfare, however, there’s nothing stopping you discussing these concerns away from the workplace. 

Notice how we said ‘in most cases’ employees don’t have to tell you about their mental health problems. That’s because in some industries, employees will be legally obliged to tell their employer if they’re taking medicine such as anti-depressants.

When Are Employees Legally Obligated To Disclose Anti-Depressant Use?

In industries where side effects of medicine such as anti-depressants could impact your employees’ ability to complete their work safely and effectively, they’ll need to disclose their use of anti-depressants to ensure the safety of themselves and those around them. 

One common side effect of anti-depressants is tiredness and fatigue, and this could prove dangerous in industries where the employee is operating heavy machinery, in charge of a vehicle for long periods of time, or in charge of making swift, potentially life-changing decisions. 

If they’re legally obligated to disclose the use of drugs that may affect their ability to complete their job, then this ought to be included in their contract of employment or in a drugs and alcohol policy. Essentially, it’s important that your employees know their legal responsibility, so they can act accordingly. 

Your Responsibility As An Employer

If you’re running a business in an industry that could be dangerous if an individual is using certain drugs with certain side effects, then you will have to include a ‘requirement to disclose’. This is a legal requirement on behalf of the employee that explains they MUST disclose if they’re using drugs that could affect their ability to perform their tasks at work efficiently and safely, including anti-depressants. 

Again, this should be included in their individual contract of employment, or in a business wide drugs and alcohol policy. Clearly state that any drug that could affect the employee’s ability to complete their work safely must be disclosed before starting work. 

In this contract or policy, you should also make it clear who the employee must disclose this information to. It can be you as the business owner if you wish, but you may think your employees will feel more comfortable disclosing this to their line manager, for example. It doesn’t matter who you choose, but you should think about who your employees will find it easier to discuss their mental health problems with, and select that person to ensure they comply.

Is A Business Legally Required To Have A Drug And Alcohol Policy In The UK?

Surprisingly, no, businesses in the UK aren’t legally required to have a drug and alcohol policy at work, nor are they required to include a ‘requirement to disclose’ in contracts of employment either. No matter the industry their business operates in. 

With that said, if you work in a potentially dangerous industry, such as construction, and you fail to provide your employees with an appropriate drug and alcohol policy or ‘requirement to disclose’, and a death or injury occurs in the workplace, your business could come under intense scrutiny. 

You may even be found to be in breach of the Health and Safety at Work etc. Act 1974 which clearly states that:

“It is the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”

If something were to happen in the workplace because of an employee’s anti-depressant use, you and your business could be liable. In order to prevent this from happening, an appropriate ‘requirement to disclose’ ought to be made clear to all employees, so they’re legally required to disclose any drug, such as anti-depressants, that could affect their ability to perform their job role safely.

Failure To Disclose Medical Condition To Employer UK Consequences

Consequences For The Employee

If an employee knowingly goes to work having taken anti-depressants and fails to disclose this to their employer AND there’s a clear ‘requirement to disclose’ in their contract or the business’ drug and alcohol policy, then there could be severe consequences. The employee could:

• Cause death or serious injury to themselves, a fellow employee, or a member of the public due to tiredness and fatigue
• Perform their job poorly or in an unsafe manner due to tiredness and fatigue
• Face disciplinary action for their failure to disclose
• Have their contract of employment terminated for their failure to disclose

Yes, as an employer, you would have every right to fire an employee who failed to disclose their use of anti-depressants if you find out they have been taking them without disclosing. In these instances, anti-depressants can legally be treated as alcohol or any other recreational drug, where most employees take a zero tolerance approach. 

It is your job to ensure health and safety in the workplace, and if an employee places that in jeopardy, even if it is just because of their use of anti-depressants without disclosure, then you have every right to terminate their contract. 

Consequences For The Employer

If there has been a failure to disclose a medical condition to an employer in the UK, such as failing to disclose the use of anti-depressants, and something happens in the workplace like a death or serious injury, then there could be consequences for the employer. 

But there will only be consequences if the employer has shown a clear failure to provide health and safety for their employees at work. This could include:

• Failing to provide a ‘requirement to disclose’ in a drug and alcohol policy or in an employee’s contract of employment
• Knowingly allowing your employee to continue with their duties if they have disclosed anti-depressant use
• Not making reasonable adjustments for your employee after they have disclosed their mental illness and anti-depressant use

As an employer, if you’re found to have failed in your duty to provide health and safety in the workplace, you could be found liable. This could mean facing hefty fines and penalties, paying out compensation to anybody affected by a death or serious injury, and possibly even criminal charges if your failure was considered severe enough. 

That’s why it’s vital that you include a ‘requirement to disclose’ somewhere for your employees and make their legal responsibility to disclose abundantly clear to them. If you do that and your employee fails to disclose and an injury or death occurs, then they’re liable, not you. 

Creating The Right Workplace Culture

Now, that’s all the legal stuff out the way, but what if you don’t work in a dangerous industry where an employee’s anti-depressant use could affect their ability to complete their job safely? What if there’s no need for a ‘requirement to disclose’ in your business?

Firstly, it’s a good idea for EVERY workplace to have a drug and alcohol policy just in case. But secondly, you’re probably concerned about your employee’s welfare, and you want to let them know that your business is one that takes mental health problems seriously and you want to support your employees any way you can. 

Well, there are a number of ways you can do this, whether your employees have a ‘requirement to disclose’ or not, to make them feel as though they can come to you for support if they ever need it:

• Talk about mental health – let you employees know that mental health isn’t something that’s swept under the rug at your business 
• Have an ‘open door’ policy – this lets your employees know they can come to you with any question or concern, and they’ll be heard
• Check in with your employees – no, this doesn’t have to be in an official capacity or meeting, simply asking your employees how they are could make them feel more comfortable about opening up

What Adjustments Should I Make After An Employee Has Disclosed Their Mental Illness In The Workplace?

The very first thing you should think about as an employer after your employee has disclosed their mental illness and anti-depressant use is safety. Are they safe to continue doing their current role? If not, what tasks can they perform instead to ensure their safety and the safety of those around them? 

Once those questions have been answered and you’ve found an appropriate alternative, if necessary, then your very next thought should be support. How can you support your employees to make their mental health problems easier to manage at work? And this could be done in a number of different ways:

It’s important to note that none of these decisions should be made alone as the employer. Sit with your employee after they’ve disclosed their mental illness and anti-depressant use and support them how they see fit. Work together to create a workplace plan that’s right for them and the business, putting safety in the workplace and their need to be supported effectively at the heart of the conversation. 

Do Employees Have To Disclose If They Are Taking Anti-Depressants: Summary

Although in most cases an employee won’t have to disclose if they are taking anti-depressants, they may have to in certain industries where a ‘requirement to disclose’ is included as part of the business’ drug and alcohol policy or individual contract of employment. 

Whether it’s a legal requirement for them to disclose their anti-depressant use to you or not, though, it’s always an excellent idea to foster a workplace culture in your business that lets your employees know they’ll be supported if they’re struggling with mental health problems. 

Make your business a safe space for mental illnesses to be discussed and you should find that more employees are willing to disclose their anti-depressant use, whether legally obliged to or not. And this will then allow you to support your employees in the best way possible, whilst also ensuring the health and safety of all those in the workplace.