Exploring legal obligations of employers in India regarding employee mental health, confidentiality, and workplace inclusivity.
INTRODUCTION
There are no particular legal requirements on an employer to ensure an employee’s ‘mental’ wellness in the workplace, aside from the general duty of care owed to its workers and the health and safety-related duties under Indian labour laws. The Mental Healthcare Act 2017 (hereinafter, MHA) is a new law that was passed in India. Strengthening the rights of people with mental diseases is the main goal of MHA. It primarily lays forth the duties and rules that mental health facilities that treat these individuals must follow. The rights of people with mental diseases are also outlined in the legislation. Additionally, the MHA highlights the right to privacy of those suffering from mental disorders. Even though this rule is not employment-specific, companies should take into consideration its ideas given the global increase in mental health concerns.
MENTAL ILLNESS AND LAWS
Currently, the Mental Healthcare Act, 2017 stands as the sole legislation specifically addressing mental health in India, offering a rights-based framework for individuals with mental illnesses. Simultaneously, India is set to implement new labour codes, including the Occupational Safety, Health & Working Conditions Code 2020 (OSH Code), the Code on Social Security 2020 (SS Code), the Code on Wages 2019 (Wages Code), and the Industrial Relations Code 2020 (IR Code), which collectively replace and consolidate 29 existing central laws.1 While these new codes focus on physical safety and welfare, they are unlikely to effectively address or improve mental health conditions in the workplace.
Mental illness under the Act is limited to disorders of thinking, perception, orientation or memory. The statute codifies the rights of persons diagnosed with mental illness and regulates healthcare establishments for their treatment. The 2017 Act is a special legislation, which would prevail over general legislation. While it safeguards the rights of persons with mental illness, it does not cast obligations on employers if they become aware of the employee’s mental health conditions. There is an absence of duties or compliances upon the employer to ensure adequate working conditions wherein an employee is subjected to minimal risks of developing mental illness while working.
ANALYSING EMPLOYER’S DUTY
In the case of Kaushal Kishore v. State of Uttar Pradesh & Ors,2 the Supreme Court held that the fundamental rights under Article 21 of the Constitution of India are enforceable even against private individuals or entities, not just the State or its instrumentalities.
In light of the judicial pronouncement, it can be inferred that if an employer or a co-worker becomes aware of an employee’s mental health condition, they are obligated to maintain confidentiality. Any disclosure of such information by the employer to third parties would constitute a violation of the employee’s privacy, as protected under Article 21 of the Constitution. Furthermore, companies that engage mental health professionals for employee well-being must ensure that these professionals uphold confidentiality and comply with relevant laws in safeguarding the privacy of the employees’ mental health information.
In India, there are currently no specific statutes, guidelines, or policies that clearly outline the duties of employers towards employees with mental health concerns. While these duties may be inferred from the Mental Healthcare Act and the Rights of Persons with Disabilities Act (RPwDA), there could be situations where an employee with mental health issues has not been formally diagnosed as mentally ill according to these laws. Despite the presence of inclusive legislations like the MHA and RPwDA, and the progressive rulings of courts, there remain several grey areas regarding mental health in the employment context, particularly in the private sector.
CONCLUSION
In the absence of specific laws or guidelines for employers in the private sector, it becomes essential for employers to adopt a comprehensive and systematic approach to address mental health concerns in the workplace. Employers should prioritize the confidentiality and privacy of their employees’ mental health information by implementing internal policies, such as mental health policies, non-discrimination policies, non-disclosure agreements, and equal opportunity policies. These measures should not only align with the legal requirements under the MHA and RPwDA but should also serve as best practices to create a supportive and inclusive work environment.
Authored by Tanvi Ojha, Legal Intern