Employee assistance programs provide employees with support when they need it - from helping them through relationship difficulties to coordinating treatment for substance abuse. And while 69% of employers offer EAPs through external organizations, the potential still exists for them to be caught in legal entanglements. What are employers' potential liabilities and what can advisers do to help them mitigate risks?

First, let's look at EAPs from the employees' perspective. Assistance may be desperately needed, but getting help through the EAP could expose sensitive personal information. "I think the biggest risk is definitely an invasion of privacy claim," says Brian Hassan, managing director of San Francisco-based BayPoint Benefits. "It's when an employee is worried that the employer is going to find out information about them that they shouldn't." This fear may stop employees from seeking much-needed help, they may be concerned about how widely their information is shared, and they may assume it will negatively impact their job.

John W. Seltzer, chief executive of J. Seltzer Associates in Pittsburgh, agrees that employee perception constitutes "the biggest risk of liability" for employers. He says incorrect assumptions and misunderstandings may lead an employee to think, "Because I chose to get help for a particular problem, somehow it affected my job status." Alcohol abuse and mental health issues are commonly cited as examples of this, especially when an employee is deemed a safety risk, and either loses their job or is reassigned because of it. "That's not to suggest that the employer wouldn't ultimately win a case like that," says Seltzer, but he believes it can cause tremendous difficulties while working through the process. Another potential difficulty could arise when an employee questions their employer's right to take disciplinary action, such as terminating them for drug use while the employee is undergoing EAP-approved rehabilitation.

Privacy and job security may be primary worries for employees, but according to Robert "Bob" C. Christenson, partner at Fisher and Phillips LLP in Atlanta, employers' EAP concerns generally center around two things. The first is making sure they comply with applicable laws, which is often a multi-faceted task. "There's an intersection here between HIPAA, ADA, FMLA, and everything else," Christenson says. This storm of factors sometimes adds layers of complexity to an already delicate issue. And then there's the safety side of things. "The other concern the employer has is that they have some duty to protect their other employees and the general public from somebody that's out there, who maybe shouldn't be operating a truck or some other kind of situation that the employer could potentially be vicariously liable for."

Safety-sensitive positions, such as an employee who operates heavy machinery, is indeed a top concern for employers, says Andi Blaylock, vice president of account services at Chicago-based Bensinger, DuPont and Associates. "If [employees] are impaired-under the influence of drugs or alcohol, or even if they're upset because of a fight they got in with their spouse on their way to work - that puts them at risk. It puts their co-workers at risk, it puts the public at risk (depending on what their position is), and ultimately it then puts the company at risk."

Blaylock believes that organizations should re-evaluate which positions they classify as safety sensitive. From manufacturing positions to security guards, she says companies should ask themselves, "How could the company be harmed if folks within the organization weren't in tip-top mental health shape?"

Voluntary vs. referral

A recent study, "EAP service use in a managed behavioral health care organization: From the employee perspective," published in the Journal of Workplace Behavioral Health showed that only 14% of EAP users were influenced by their employer or supervisor to use EAP resources. The remaining majority of participants contacted EAPs on their own volition. Those employees typically enjoy significant insulation from their employer when working through their issues.

"If the employer is not involved, that's all completely confidential," Blaylock says. "At the beginning of all our initial calls with someone, we are explaining the limits of confidentiality, we are letting them know that everything they discuss with us is confidential [and] will not be shared with their employer or anyone else outside of the EAP." In voluntary situations, information that is often restricted includes anything that identifies the employee as well as any services they may be requesting.

However, there are limits to that confidentiality, such as when people talk about hurting themselves or someone else. "A lot of times, the reason they would share information with employers is if the employee may be a danger to themselves or other employees," Hassan says. Warning signs could come from an employee who is mentally or emotionally unstable or from someone with a substance addiction in a job where impairment would present a danger, either to the employee, other workers, the public, or assets of the organization.

When an employee is referred to the EAP by the employer - typically in situations where the employee's job hinges on resolving a specific issue, such as substance abuse - more information is often shared between the EAP and the employer than when an employee goes to the EAP on their own. "In those more formal management referrals, we get release forms from the client so we can report back to the employer the employee's progress, how they're doing, any safety sensitive issues or concerns of that sort," says John Kamilis, clinical director at CuraLinc Healthcare in Skokie, Ill.

The EAP then lets the employee know their rights and responsibilities, but they also that if they fail to comply with the resolution plan, it may have an impact on their job. "The EAP sort of acts as a buffer between the employer and the employee to make sure that the needs of the employee are being addressed," Kamilis says, "but the concerns and needs of the employer are also being addressed here as well." His team may work with the employer to review their policies and procedures to address workplace issues in a way helpful to the employee, but limiting liability concerns.

Obtaining an authorization from the employee that clearly spells out an employer's intention to access health information is vital, says George F. Brenlla, partner at New York-based Clifton Budd & DeMaria, LLP. "That's one thing employers should do and get in writing, to allow the employer to track the employee's progress and the likely completion date." It should be made clear to the employee that the employer doesn't necessarily want to know the details of what's being discussed with the health care provider, Brenlla explains. Instead, the employee should understand that the employer wants to make sure the employee is going to the EAP, and that they're following EAP counseling instructions and/or whatever treatment plan has been recommended. "More importantly, we want a definitive answer from the counselor when this person anticipates return to work," Brenlla says. To EAP or not to EAP?

Even when HR groups are capable of managing issues in-house, leveraging the resources of an EAP may shield employers from potential risk. "I think we're seeing more and more that employers don't want to know - or want to know as little as they have to know - and don't want to get involved, more so from a liability perspective," Seltzer says. Especially in smaller companies, much of what goes on in employees' personal lives is already known by the rest of the staff and so that information is hardly a secret. "But we believe, from a purely liability perspective, the more you can push out to the third party, the better it is for the company in the long run." Seltzer says that even an innocent, genuine gesture to try to help an employee could bring liability repercussions. "The whole area is so fraught with dangers," he says. He advises employers to use the EAP to their advantage by encouraging people to use it and maintaining some distance between the organization and employees' issues. Brenlla refers to this distance as a "firewall," saying it's another tactic available to employers to protect themselves and avoid liability.

Limiting exposure

Experts say that good, consistent communication is one important factor in mitigating an employer's risk, and this is where broker advisers can really shine. "I think a lot of it comes down to communication," Christenson says. "When you're rolling out your EAP to people, you really need to have some materials that talk about the boundaries." During enrollment periods, when new employees come on board, and anytime there's activity around benefits or the EAP in particular, putting information in front of workers that reinforce those boundaries will help make the message clear. "And that's where I think brokers can help," Christenson adds. Because brokers are often involved in crafting and presenting employee-facing communications, they have many opportunities to ensure employees know where the lines of confidentiality are drawn.

If an organization is starting from scratch, Brenlla also suggests including information regarding when a mandatory EAP referral will occur in the employee handbook, in any EAP-related materials, and within an organization's employment policies. "Whether it be drug, alcohol, attendance issues, or things of that nature, the first step is to make sure the employee is aware in the employee documents of when an EAP referral would be placed," Brenlla says. He encourages employers to also include a section that addresses potential consequences if an employee fails to comply with the prescribed resolution plan, with language that allows the company enough discretion to reach the best outcome in each case.

Once the EAP has been launched, Hassan believes it's vital to reach employees on an ongoing basis, and reminds brokers that not all mediums reach every employee. In addition to using an interactive Web portal to provide information on EAPs, Hassan's team also sends co-branded manuals and brochures. "It's just consistently driving the message home," he says. "'You're not guaranteed absolute confidentiality, and there are certain situations where information will be sent back to the employer.'"

In addition to providing clear and thorough information proactively, advisers are also a good resource when employees have questions. "As a broker consultant, one of the things we really pride ourselves on is doing a lot of that communication on behalf of the employer," Seltzer says. In his experience, the message coming from HR and from the broker are the same, but "it's how we're perceived when we're saying it," he says. "I think employees tend to listen to us more carefully. And that's where we can be of great assistance to the employer."

Knudson is a freelance writer based in Washington state.

 


 

 The Skinny on HIPAA

HIPAA's reach may not be as expansive as employees assume. "HIPAA only protects protected health information," says Bob Christenson, partner at Atlanta's Fisher and Phillips LLP. "And it only does so with respect to group health plans. So a lot of EAPs aren't really even subject to HIPAA." Unless an EAP actually provides treatments or carries out consultations, Christenson says it's not normally going to be subject to HIPAA to begin with - simply supplying referrals keeps them largely out of the health privacy arena. In these cases, Christenson says it's up to the employer to set the boundaries on how much privacy their employees have a right to expect. "What you really need to do is delineate for the employee what's going to be confidential and what isn't.

"For those EAPs providing services directly, Kamilis says HIPAA compliance usually comes into play. "It does tie your hands somewhat in terms of what we're able to disclose to the employer, and what we're able to do," he says. Depending on how the employee came to the EAP - voluntarily or as a referral from their employer to address a specific issue - local regulations may also have something to say about how much and what type of information can be shared with the employer. In voluntary situations, employers might only get access to aggregate information such as head counts.

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