October 25, 2023

EAP: Employee Assistance Program or Employer-Applied Pressure?

I am a huge fan of and advocate for Employee Assistance Programs. The licensed clinicians are a wonderful resource and support mechanism for employees who may face myriad issues related to their personal life, work, or integration of the two. They can also be a great resource for employers. They provide a mechanism by which HR or a manager can provide an employee with support, while shielding them from knowing the specific (and often legally protected) nature of the issue.

This claim, however, is a story of first impression for me.  We know there can be risks of imposing a mandatory referral upon an employee. One is that such a referral might give rise to a claim that the employer perceived the employee to have a disability in violation of the Americans with Disabilities Act (ADA). But this referral set the employer on a different slippery slope. The claim alleged four violations of the ADA, none of which were based on perception.  What did the employer reportedly do wrong? The employer:

  1. mandated that the employee contact the EAP within 24 hours;
  2. told the employee she could not return to work until she had done so;
  3. required the employee to sign an authorization for the EAP to release her clinical records; and
  4. conditioned her continued employment upon the above.

When the employee declined to contact the EAP or complete the authorization form, the employer suspended her for 11 days and then fired her.

Lessons Learned. Regardless of the outcome of this lawsuit, consider these and other issues. EAP referrals are usually an offer, not a direct instruction. If you are going to mandate the referral, have a reason that is job-related and consistent with business necessity.  Do not seek medical information in violation of the ADA, HIPAA, or the Genetic Information Non-Discrimination Act (GINA). Be equitable in your mandatory referrals. The employee in the above case has also suggested that she was treated differently and other employees were not subject to mandatory referrals. When in doubt, talk to your company’s legal counsel.