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Employee Assistance Program Questions

Employee Assistance Programs (EAPs) are designed to help businesses and organizations address productivity issues by helping employees identify and resolve personal concerns that affect job performance. Through prevention, identification, and resolution of these issues, these worksite-based programs enhance employee and workplace effectiveness and improve worker health and productivity. Those who work for EAPs come from many different professions, including social workers, psychologists, counselors, substance abuse specialists, occupational nurses, and others.

Below are some of the top EAP questions answered by Employment Lawyers on JustAnswer.

Since any information shared with EAP is confidential, can an employer make a mandatory management referral and require you to tell them of the scheduled appointment date?

The employer can refer an employee to an Employee Assistance Program (EAP) and make it a condition of employment. The EAP allows for the information/discussions in the meetings with counselors to be private.

However, if an employee is mandated to the program, the counselor would verify the employee's attendance and that would be all. The employer would need to know if the employee showed up and is following the referral as set by the company. But the counselor may not share what is said in the meetings. There is only one exception, and that is when an employee makes statements that may pose a danger to himself or someone else, where the counselor by law is required to disclose.

Do short-term Employee Assistance Programs fall under Employee Retirement Income Security Act (ERISA)? For a small company like ours, coming up with a plan is costly and only adds to our administrative burden.

In general, an employer-sponsored EAP is an ERISA plan, but it depends on whether the program provides medical care. Plans that provide medical care are subject to ERISA.

According to Department of Labor (DOL) advisory opinions, if an EAP has trained counselors (they do not have to be MDs or PhDs) who provide counseling service, then the EAP probably provides medical care and is subject to ERISA. If the EAP only provides referrals to other professionals and is not staffed by trained counselors, it is probably not an ERISA plan. This is a gray area, and many employers (and EAP firms) are unaware that an EAP may be an ERISA plan.

The DOL has found that “mental health services” can constitute medical benefits for ERISA purposes. EAPs that offer counseling benefits often fall into the ERISA plan category. On the other hand, if an EAP does not provide such services, it may not be an ERISA plan. If an EAP does not provide any counseling and provides only referrals to counselors, it is unlikely to meet the definition of an ERISA plan.

An EAP program that offers an ERISA-type benefit may still be exempt from ERISA if the arrangement falls outside the ERISA definition of a welfare plan because it is considered to be “established or maintained” by the employer. In most cases, the employer pays the cost of employees’ participation in the EAP, so it is clear that the employer has established and is maintaining the EAP.

If the employees pay the full cost of their EAP coverage, and the employer merely discloses the availability of an employee assistance program to employees, it may not be offering an ERISA plan.

If the employer creates an administrative framework for the provision of these benefits, or endorses the program, the program may become an ERISA program even if the employer does not pay the cost for the EAP.

An attorney would have to review the plan documents in detail to get you the definitive answer as to whether or not it falls under ERISA. If you are in doubt, the safest route is to treat your EAP as an ERISA plan. For more clarifications on the law, contact Employment Lawyers on JustAnswer.

Can a company interview my colleagues about my work performance and my alcohol problem after mandating me to attend the company's Employee Assistance Program?

Yes, it's legal, though perhaps a bit unprofessional. This information was known to the employer not through obtaining medical records protected by Health Insurance Portability and Accountability Act (HIPAA), but through their own personal knowledge. Therefore, the only law that could have protected the information is not applicable here. Also, they can ask these questions as part of an investigation that they are legally entitled to do.

Can an employee be fired for requesting help from an EAP after being put on suspension for substance abuse?

He may be terminated in this respect, as the Americans with Disabilities Act (ADA) does not require that an employer ignore someone showing up to work under the influence. The EAP would only protect this type of disability if the employee has not engaged in any misconduct at work and simply asked for time off to attend a substance abuse program.

The company may hold the right to terminate an employee for either misconduct or performance issues that they discover. However, the employer may not terminate an employee for seeking help under the EAP. It is best to consult with a local employment law attorney about filing a wrongful termination suit. You may also seek further clarifications on the law from Employment Lawyers on JustAnswer.

Can the EAP advise me to self-report to the Tennessee Professional Assistance Program for assessment and ongoing monitoring of my alcohol problem despite the confidentiality clause?

You have admitted an alcohol problem and have been told that as a requirement of your continued employment with your employer that you must participate in an assessment program.

The EAP aims to provide you with help and with job protection based on your having a disease and not simply a situation where you can be terminated for inappropriate behavior.

While the law may prohibit the employer from terminating you based on your admission of fact, they may nevertheless demand that you participate in a program to deal with your illness. That is not the same as them disclosing your communications to a third party with no need to know.

You have no legal obligation to participate in the Assistance Program. However, if you do not, you must understand that your employment is thereby placed in jeopardy.

Maintenance of confidentiality of employees’ participation in the program is the cornerstone of professional ethics as well as federal and state regulations that apply to EAPs. The EAP may not disclose any information shared by the employee without prior written consent. Confidentiality also extends to information that is recorded (i.e., contact forms) as well as unrecorded (i.e., personal observations or opinions). However, there may be certain exceptions to complete confidentiality, which may include medical emergency, threat to self or others, abused or neglected child, or court subpoena.

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