EAPs are not legally mandated under Australian law. This means an employer will not face a direct penalty simply for not having one. However, under the Work Health and Safety Act 2011, employers are required to provide a workplace that is safe and without risks to health, including psychological health. Regulators recognise mental health hazards like stress, harassment, and trauma as risks that must be managed. If a workplace investigation occurs and an employer cannot demonstrate reasonable steps to address these issues, the lack of an EAP could be seen as a gap in compliance. In effect, while the law doesn’t make EAPs compulsory, they often become essential evidence that an employer is fulfilling their legal responsibilities.

Many businesses still ask, “If it’s not required, why bother?” The answer lies in the difference between doing the bare minimum and adopting best practice. Minimum compliance means avoiding penalties, but best practice builds resilience, trust, and productivity. By offering an EAP, employers show they are going beyond just meeting the letter of the law. They are proactively addressing psychosocial risks and making it easier for employees to access support. This can make a huge difference during audits, legal disputes, or when handling sensitive workplace issues. More importantly, best practice improves culture and can be a deciding factor for employees choosing to stay with or leave an organisation.

Under WHS legislation, employers must manage risks in the workplace. For physical safety, this might mean protective equipment or safe machinery. For mental health, it means creating access to support systems that can help employees cope with stress, conflict, or trauma. EAPs provide a structured solution by giving employees confidential counselling, early intervention tools, and professional resources. They also help employers respond to critical incidents, such as workplace accidents, customer aggression, or grief after a colleague’s passing. Each of these situations carries psychosocial risk, and without an EAP, employers may struggle to prove they took reasonable measures to support their staff. An EAP therefore acts as both a protective measure for employees and a compliance safeguard for employers.

Fair Work Australia requires employers to protect employees from discrimination, harassment, and unsafe working conditions. While EAPs are not named directly in Fair Work’s framework, they provide a practical tool for meeting these expectations. In situations where an employee raises a complaint, an employer who offers EAP can demonstrate that they took meaningful steps to support wellbeing and reduce harm. It also creates a confidential channel for employees who may not feel comfortable speaking directly to HR or managers. In dispute resolution or claims processes, this evidence of proactive care can significantly reduce legal and reputational risks for employers.

Even without a legal requirement, many industries in Australia treat EAPs as essential rather than optional. High-stress sectors such as healthcare, emergency services, mining, transport, and education often see EAPs as part of their core risk management strategy. Employees in these industries are frequently exposed to trauma, long hours, or emotionally demanding work. Without structured support, staff turnover and compensation claims can skyrocket. For this reason, regulators and unions in these sectors often expect EAPs, even if they are not legally mandated. Over time, this has created an industry-wide norm where businesses that do not provide EAP may be seen as falling short compared to competitors.

While technically optional, choosing not to provide EAP can expose employers to significant risks. Without EAP, businesses may see higher rates of absenteeism, presenteeism (being at work but unproductive), and workplace conflict. In some cases, lack of support can lead to workers’ compensation claims or WorkSafe investigations, which are often far more expensive than the cost of providing an EAP. Employees today are also more aware of their rights and expect their employers to care for their mental wellbeing. A company without an EAP may struggle to attract or retain skilled staff in competitive labour markets, which makes it a risk not just for compliance but for long-term business success.