‘Tis the Season to Review your Employee Assistance Program Policy

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For many, dark clouds roll in during the season of holiday cheer. For those struggling with substance abuse issues, the loss of a loved one, or depression, the public atmosphere of celebration can exacerbate problems that otherwise are kept at bay. During this time, conscientious employers are well served to keep an eye on employee performance and disposition. To the extent that an employee’s behavior appears to deviate from what you have come to expect, now may be a good time to remind all employees of any available Employee Assistance Program (EAP) that the employer offers.

Just what is an EAP? EAPs provide counseling and referral services to employees who may be struggling with substance abuse or emotional issues such as depression or family crisis. Depending on the nature of the underlying issue and its effect on workplace performance, an employee’s participation in an EAP may be voluntary, or may be a required condition for continued employment.

Reasons for establishing an EAP program extend beyond benevolence. EAPs may help employees resolve emotional or substance abuse issues that otherwise would lead to their departure from the company. Those programs may also help employees become more efficient and focused in their daily tasks, and can also ameliorate problems of absenteeism or tardiness.

A company may make an EAP available as an in-house service staffed by designated company employees, or through a contractual arrangement with an EAP provider. Both in-house and external EAPs have their respective merits and detractions. The convenience of having such services available on site can improve employee participation.

However, employees may feel inhibited from being completely candid with a coworker, or from being seen walking into the designated EAP office at the workplace. In order to achieve buy-in from employees, the employer will need to provide assurances of privacy to employees.

Start-up costs of establishing an in-house EAP can also be prohibitive.
Additionally, there are several potential legal liabilities that can attach to an employer’s EAP. That is, negligent or unethical conduct by a company’s EAP employees can give rise to certain legal claims.

For example:

• Misdiagnosis: While EAP employees are generally not making medical diagnoses, liabilities may develop from an EAP employee’s failure to apprehend the gravity or nature of an employee’s particular condition or problem.

• Negligent referral: An EAP counselor or the employer may be found liable for harm caused by a referral to an unlicensed or unqualified provider.

• Abandonment: Claims that an EAP counselor ended treatment before the employee’s problem has resolved may in some circumstances be viable, particularly in situations in which the employer terminates the employee (and thereby ends the employee’s counseling relationship).

• Confidentiality: Some materials generated through EAP counseling may constitute medical records or health information subject to privacy rules under the federal Health Insurance Portability and Accountability Act (HIPAA) or some law. Inappropriate disclosure of such confidential information may result in liability. Conversely, in some circumstances, failure to disclose potential dangers to third parties to which an EAP counselor becomes privy may also result in liability.

• Inappropriate relationships: Sexual or social relationships with employees with whom the EAP counselor is meeting may give rise to liability. If an EAP counselor is available on site, the employer should take steps to ensure that such inappropriate relationships do not occur.

That said, while those potential liabilities remain a reality, an employer may take concrete steps to limit such risks. First, such risks are reduced if the employer contracts with a qualified vendor of EAP services rather than operates its own EAP in-house. The employer must make sure, however, that any service provider has the necessary expertise to provide those services. The employer should also confirm that the service provider has the appropriate liability insurance.

Indeed, like the underlying conditions that may make an employee a good candidate for EAP services, the risks related to an employer’s establishment of EAP can be managed and addressed. Once the EAP is up and running it can grow into an invaluable tool to improve the quality of life (and productivity) of a company’s employees.
Happy Holidays from your friends at Barran Liebman!

José Klein is an attorney with Barran Liebman LLP in Portland, Oregon, where he advises employers on a range of labor and employment law issues. Contact him at 503-276-2199 or jklein@barran.com.

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