Employers – Be Careful with Those Mandatory EAP Referrals!

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As part of the corrective action process, some employers require employees to go to a company-provided Employee Assistance Program (EAP). Such programs are intended to offer resources and support to employees for their personal issues on a confidential basis, at no cost to the employee. The scope of services is wide, including health, financial and social issues. And to the extent that a mandatory EAP referral is related to an employee’s health, that that can trip up employers, as a recent announcement from the Equal Employment Opportunity Commission highlighted.

The EEOC is suing Weis Markets for “unlawful use” of the Company’s EAP. According to the announcement, after an employee complained of sexual harassment by her supervisor, the Company told the complaining employee that her coworkers had complained about her and that, as a result, she would be required to participate in its EAP. The EEOC asserts that the mandatory EAP referral would have required the employee to undergo a medical examination and disability-related inquiries, as well as release medical information to the Company. In addition, a Company official told the employee that the referral was to determine whether she should be placed on disability leave. When the employee refused to comply with the mandatory EAP referral, she was suspended without pay and then discharged.

Under the Americans with Disabilities Act, employers cannot require employees to undergo medical examinations or answer questions that may reveal a disability unless the employer can show that the examinations/inquiries are job-related and consistent with business necessity. Another issue that arises under the ADA with regard to requiring a medical evaluation through EAP is the argument that the employer might be regarding the (non-disabled) employee as disabled, in violation of the law.

But mandatory referrals to EAP do not necessarily violate the ADA. As to the first issue, if the referral does not involve a medical examination or medical questions, the ADA would not be implicated. As to the second issue of “regarded-as” disability, in an informal discussion letter from 2000 (which was withdrawn in 2019, but is nonetheless illuminating and still publicly available), the EEOC addressed the question of whether an employer’s suggested or required referral of an employee to an EAP creates the perception of disability covered by the ADA.  The EEOC stated, on the one hand, that,

It is unlikely that a mere referral to an EAP, by itself, would be sufficient to establish that an employer treated an individual as having a substantially limiting impairment.  Simply referring someone to an EAP probably would not constitute regarding the person as having a substantially limiting impairment if the employer routinely referred people to EAP for reasons unrelated to impairments (such as grief or marriage counseling).

The EEOC goes on to observe, however:

On the other hand, a referral to an EAP in combination with other relevant evidence could raise an inference that the employer regarded the person as having a substantially limiting impairment.

Of course, employers may legally make mandatory EAP referrals for a health-related evaluation where there is uncertainty as to an employee’s health condition and fitness for duty.  As the U.S. Court of Appeals for the Eighth Circuit stated in a 1998 case:

An employer’s request for a mental evaluation is not inappropriate if it is not obvious that an employee suffers from a disability.  A request for an evaluation is not equivalent to treatment of the employee as though she were substantially impaired.  Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims [under the “regarded as” prong] . . .

However, where an employer connects an employee’s work issues with a health condition for which it then requires the employee to obtain EAP counseling, the employer will likely be found to have regarded the employee as disabled in violation of the ADA.

So where does this leave employers with regard to mandatory EAP referrals? Well, the type of EAP services that the employee is required to obtain will determine whether such referral could raise issues under the ADA:

  • If the referral is for non-health related counseling (e.g. dispute or conflict resolution, anger or stress management) and there has been no prior discussion with the employee regarding any health-related issues (such as mental health concerns) that could underlie the behavior warranting the referral, there is no problem with a mandatory referral.
  • If the referral is for a health-related evaluation (such as a psychiatric evaluation), based on an employee’s behavior in the workplace, and the employer is trying to obtain information about whether there may be a health-related component to the employee’s behavior, without having previously discussed such concerns with the employee, there is likely no issue with a mandatory referral, as long as it is both job-related and consistent with business necessity.
  • If an employer assumes and states to the employee, without any medical basis, that the employee has a health condition that is causing performance concerns and then refers the employee for a health-related evaluation, a mandatory referral could possibly be viewed as regarding the employee as disabled in violation of the ADA.

To the extent that there is any health-related aspect of a mandatory referral to EAP, either on the employer’s side or EAP’s side, employers should certainly consult with their employment counsel before taking such a step.