EAPs are not compulsory by law. No legislation in Australia explicitly requires businesses to provide an EAP. However, the Work Health and Safety (WHS) Act 2011 places a duty of care on employers to protect both the physical and psychological health of employees. If a worker is exposed to unmanaged mental health risks, an employer could be found non-compliant. An EAP is one of the most practical and effective tools available to demonstrate that you are meeting this duty of care.

Work health and safety obligations now extend beyond physical risks like slips and falls. Employers are required to identify and manage psychosocial hazards such as workplace stress, bullying, high workloads, and interpersonal conflict. Implementing an EAP helps create a structured response, offering confidential counselling and wellbeing support that directly addresses these hazards.

While Fair Work Australia does not mandate EAPs, it enforces workplace rights that overlap with mental health and wellbeing. For example, employees are entitled to a safe workplace free from discrimination, harassment, and unreasonable stress. By offering an EAP, organisations show they are taking reasonable steps to support employees, which can reduce disputes, grievances, and claims under the Fair Work Act.

Failing to manage mental health risks can expose employers to legal claims, penalties, and reputational damage. Cases brought before workplace regulators increasingly highlight employer responsibilities to manage psychological safety. While not mandatory, having an EAP can serve as a form of protective evidence, showing regulators that you acted responsibly and proactively to support staff wellbeing.

Agencies like WorkSafe Victoria encourage proactive steps to protect employee mental health. EAPs are regularly cited as a best-practice initiative, alongside training, flexible policies, and mental health awareness programs. Although voluntary, they are considered an industry standard in many sectors. Not offering one could leave your business behind in terms of compliance and employee expectations.

Beyond reducing legal risk, EAPs offer wide-reaching benefits. Employees gain confidential access to counselling and support, while employers benefit from improved productivity, lower absenteeism, and stronger staff retention. By aligning compliance obligations with genuine care for staff, businesses create a healthier, more sustainable workplace culture.