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Employee Assistance Programs (EAPs) are programs that assist employees to cope with personal problems influencing their work, well-being and physical and/or mental health. Short term programs-paid counseling, assessment, support and referrals are generally provided through these programs. Issues that are personal in nature and are not related to work are attempted to be redressed through EAPs. Some of the common personal issues that may be addressed are substance abuse, health, emotional distress, financial concerns, life events such as birth or death, as well as work-relationship issues. In line with privacy laws and ethical standards, the confidentiality needs to be maintained by the employer. Few questions related to the EAPs are answered below: Q. Is it allowed for an employer to ask one to disclose the scheduled appointment date when a mandatory referral is made? This is in light of the fact that information shared with EAP is confidential.
As per the EAP, the employer may not be made aware of any information or discussion that takes place between the counselor and the employee. However, if there is a statement that has been made by the employee that would damage the employer or the employee himself/herself; then the counselor is required to divulge the data to the employer. The role of the employer is limited only to the extent of referring the employee to the EAP and ascertaining if the employee has attended the program. The discussion that transpires in the program cannot be divulged to the employer. Sometimes, it may be stipulated in the terms of the employment for an employee to be referred to the EAP. Q. If an employee has been referred to attend the EAP, can that employee’s work performance and alcohol problem be discussed with the employee’s colleagues?
Issues related to one’s work performance may be discussed with colleagues though the employee has been referred to an EAP. However, the information should not be collected through medical records protected by the Health Insurance Portability and Accountability Act (HIPAA). As long as the rights of the employee are not violated, the law allows the employer to conduct an inquiry. Q. With the confidentiality clause in place, is it possible for the EAP to ask the employee to self-report the alcohol problem to the Tennessee Professional Assistance Program for assessment and ongoing monitoring?
As a precondition to continued employment; an employer may require the employee to be a part of the assessment program due to the employee admitting to having an alcohol problem. An employee may be able to receive assistance with regards to job protection from the EAP. However, the EAP may not be able to assist if one is fired from employment due to misconduct or due to non attendance of work because of the addiction. Considering the situation, the employer may not divulge any medical or other data regarding the employee’s condition. In addition, the employer may not fire the employee just because the employee has self-reported the problem. However, the employer may insist that the employee attend EAP. It is not required that the employee abides by this, but this may put his/her job in danger. Q. Consider a situation where an employee has been suspended from work for substance abuse. Is it possible for an employer to terminate such an employee if he/she seeks assistance from an EAP?
In such an event, the employer may not fire an employee. If the employee is underperforming or does not come to work, it is not required for an employer to retain him/her as per the Americans with Disabilities Act (ADA). If the employee has requested for leave to attend EAP and there is no misconduct; only then disability related to substance abuse is protected. Therefore, the employer may not fire an employee for merely requesting assistance under EAP, unless there is a performance issue or misconduct. If one believes that one was subjected to wrongful termination, then services of an attorney may be hired. Personal problems that may impact an employee’s productivity may be addressed through Employee Assistance programs. Both the employers and the employees may benefit from EPAs if used effectively. EPAs are legally bound to maintain confidentiality due the nature of issues that are handled. Recorded (medical documents or contract forms) or unrecorded (through counseling, discussions, or opinions) information (with few exceptions) should not be disclosed. You may speak to an employment lawyer if you need any more information on the Employee Assistance Program.
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