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Employee Assistance Program (EAP)

Programs offered to employees that help them deal with personal problems affecting their work, well-being, and physical and/or mental health, are known as Employee Assistance Programs (EAPs). Typically these programs provide short-term program-paid counseling, assessment, support and referrals. Several non-work related and personal issues such as substance abuse, health, emotional distress, financial concerns, life events such as birth or death, as well as work-relationship issues are addressed through EAPs. Employers are expected to maintain confidentiality in accordance with privacy laws and ethical standards. Since the program deals with confidential and sensitive issues, doubts about the legal aspects of the program sometimes arise. Below are some of the top questions on the subject answered by Legal Experts.

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

The EAP mandates that all discussions between the employee and the counselors remains confidential and is not shared with the employer. The only exception to this rule is when the employee makes any statement that would harm either him/herself or the employer, in which case the counselor is obliged to disclose such information. An employer referring and employee to the EAP may only verify whether the employee has attended the program, but the counselor cannot disclose what the employee says in the meeting(s). An employee may also be referred to the EAP as a condition of employment.

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?

An employer may mandate you to join the EAP and still interview your colleagues about issues related to your work performance. As long as this information is not obtained through medical records protected by the Health Insurance Portability and Accountability Act (HIPAA), it is legal for the employer to do so. The employer is legally entitled to carry out investigations in any manner that does not infringe upon your rights. And, in doing so, the law that protects such information would not be applicable here.

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

The employer may not terminate an employee for merely seeking help under the EAP for substance abuse. However, as per the Americans with Disabilities Act (ADA), the employer is not obliged to retain an employee who is underperforming or does not show up at work. Disability related to substance abuse is protected only if the employee has not engaged in any misconduct, but has simply asked for leave to attend the EAP. Thus, the employer retains the right to terminate employment based on either misconduct or performance issues, but not for seeking help under the EAP. A local attorney may be able to advice you on filing a wrongful termination suit.

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?

The employer may place the assessment program as a prerequisite to continued employment since you have admitted to having an alcohol problem. You may receive support from the EAP for your alcohol problem and may even get help with job protection for your situation. However, the EAP is not obliged to cover for you in case you are terminated for inappropriate behavior or inadequate attendance as a result of your addiction.

In this particular case, your rights include confidentiality whereby the employer may not disclose any medical or other information related to your condition. Also, the employer may not terminate you based on your admission of fact. While the employer may demand that you participate in an EAP, you have the right to refuse. However, refusing to do so may jeopardize your employment.

Employee Assistance Programs help employees address and resolve personal issues that affect job performance. EAPs can be an effective tool for both employees and the employer to maintain or increase workplace productivity by taking a positive approach. Since the EAP addresses highly confidential issues, it is bound by law to not disclose any information, whether recorded (medical documents or contract forms) or unrecorded (through counseling, discussions, or opinions), with certain exceptions. If you are part of an EAP, it may be suitable contact a Legal Expert to evaluate your particular situation and understand your rights.
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