There’s a persistent rumour that refuses to die in Australian workplaces:
“If we offer an Employee Assistance Program (EAP), we’ll be liable for any mental health issues that come up.”
It’s a belief rooted in fear — and it’s stopping countless small and mid-sized businesses from providing the very support that could reduce risk, improve engagement, and drive performance.
Let’s get one thing clear:
Not offering mental health support is more dangerous — legally, culturally, and commercially — than offering it.
In this article, we unpack:
- What the law actually says about mental health risk
- The myth that EAPs increase liability
- How the right EAP protects your business
- Why support ≠ admission of guilt
- When (and how) to introduce an EAP the right way
What Is an EAP, Really?
An Employee Assistance Program (EAP) is a confidential, short-term counselling and support service offered to employees and, in some cases, their immediate family.
It typically includes:
- Mental health counselling
- Support for personal, legal, or financial issues
- Manager support hotlines
- Crisis intervention
It’s not therapy. It’s not ongoing treatment. And it’s not a legal admission that your workplace is causing psychological harm.
What the Law Says About Mental Health in the Workplace
Under Australia’s model WHS laws, employers have a duty of care to manage psychosocial risks in the workplace — just as they do for physical risks.
This means:
- Identifying psychological hazards (e.g. bullying, workload, isolation)
- Taking steps to control them
- Providing support when harm is likely or occurs
In other words, if you’re not providing some form of mental health support, you may be failing your WHS obligations.
Myth: “If an Employee Tells the EAP They’re Struggling, We’ll Be Liable”
Wrong.
EAPs are confidential. Providers won’t (and legally can’t) share what’s discussed, unless there’s a risk of harm.
Here’s how it works:
- Employers get aggregated usage data (e.g. 12% of employees accessed support, top issues: stress, family conflict, anxiety)
- Employers don’t get individual reports
- This keeps the service safe for employees — and protects you from knowing things you shouldn’t
You can’t be liable for what you didn’t and couldn’t have known.
In fact, courts and regulators look favourably on businesses that proactively offer support, not those who withhold it to avoid accountability.
Why This Fear Persists
There are three reasons this myth survives:
- Misunderstanding of confidentiality
Many leaders wrongly believe EAPs will report back detailed information. - Over-cautious legal advice
Some HR teams are told “don’t create a record of risk” — a misapplication of legal strategy that ignores cultural damage. - Budget concerns disguised as legal fear
In reality, “liability” is often used as a reason to cut costs.
But here’s the truth:
The real liability is doing nothing.
How the Right EAP Reduces Risk
- Early intervention — Issues are caught before they escalate to claims or resignations.
- Support for managers — Your frontline leaders are often the first to see a struggling employee. EAPs give them guidance.
- Data to inform WHS strategy — Anonymous insights help you target the right psychosocial controls.
- Reputation boost — Offering mental health support is now an expectation, not a perk.
And with modern EAP platforms, even small businesses can offer services affordably, often on a per-employee, per-month basis.
What If Someone Makes a Mental Health Claim After Using the EAP?
Then your EAP becomes part of your risk mitigation story, not your liability.
You can show:
- You provided access to confidential support
- You trained managers in psychosocial safety
- You acted in line with WHS requirements
- You had systems in place to respond
Compare that to a business with no support at all — and the regulator’s response will be very different.
How to Introduce an EAP (Without Making It a Red Flag)
Some businesses hesitate to roll out an EAP because they fear it signals a problem. But when done right, it signals leadership and care.
Here’s how to introduce it:
- Position it proactively — “We want to support you, not because something’s wrong, but because we care about your wellbeing.”
- Embed it into onboarding and internal comms
- Make it visible, but not intrusive
- Train managers on how and when to refer
- Use it as part of your psychosocial risk strategy
Need help rolling one out? Hack Your HR helps Australian businesses implement EAPs that meet both cultural and legal obligations — without the complexity or cost of enterprise solutions.
Final Word: Stop Letting Fear Guide Your Wellbeing Strategy
Offering support is never the problem.
In fact, it’s the businesses who do nothing — out of fear of doing the wrong thing — who usually end up in trouble.
A well-structured EAP is:
- Low risk
- High reward
- Legally sound
- Culturally smart
And above all, it tells your people:
You matter.