The Collision of an Employee’s Work and Personal Lives: The Role of the EAP Referral

Kris Dunn at the HR Capitalist has a thought provoking post on the value of EAPs that includes the following comment:

Want to get a bunch of HR people nodding their heads?  Make a statement about the value of the Employee Assistance Program (EAP) our companies offer, usually as part of the Life Insurance suite.  It’s true, it’s a great product and every once in a while we get a great chance to refer someone to it and it does some good.  Much patting on the back usually commences…

Before we start the head nodding and the back patting, consider also the limits of EAPs. Many serious and festering situations aren’t appropriately handled by saying "Hey buddy, you know the company has an EAP." This approach is a product of not wanting or knowing how to get involved. It is rationalized by the misapplied legal advice that states "keep it job-related".

There is a dangerous trap created by compartmentalize an employee’s "work life" and "home life". It may be appealing, but many times this dichotomy is wholly impractical. The two personas of work and home are inextricably tied and that’s what makes mental health and other personal problems one of the biggest challenges facing employers. The challenge often cannot be met by a chance interaction with the EAP (no matter how well it is promoted).

One in five American workers suffer mental illness which makes the odds high that an employer will need to manage such a "personal problem". A difficult task given the stigma attached to mental illness which is made harder by the high level of expertise needed to manage performance issues with a mental health aspect. The result of a mismanaged situation is at best a poor performing employee, possibly an ADA claim, or at worst an act of violence in the workplace.

Statistics on the effectiveness of EAPs are scant, possibly because of the confidentiality that surrounds them. I applaud what EAPs seem to do well: facilitate referral/intake for employees who choose to continue participation beyond the three or so free session provided under the typical plan. I caution on what EAPs don’t do at all: absolve employers from liability for ADA and other workplace claims.

Employers may need to consider mandatory referral to a health care professional or EAP. There is a distinct difference between management referrals vs. mandatory referrals. Typical situations may involve alcoholism, drug abuse, or risks of violence in the workplace. A mandatory referral requires that the employee consult a healthcare provider as a condition of continued employment. It may be used in compliance with the ADA Guidelines on Medical Exams when an employer "has a reasonable belief, based on objective evidence", that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat to himself of others due to a medical condition.

The medical information obtained from the EAP referral is not confidential and needs HIPAA consent. It can be a part of the "interactive process" mandated by the ADA for assessing disability-related accommodations and/or as part of the employer’s performance management-disciplinary process. The referral generates an assessment that determines whether the employee is able to perform the essential functions of a position, evaluates accommodations, recommends follow up treatment, and may set conditions on the return to work. It may implicate FMLA leave.

Mandatory referrals are high-stakes, high-energy actions that bring workplace issues to a head. They give an employer the medical information to achieve a positive result with legal protections. If done with honesty, dignity and compassion, they can be very successful. However, success doesn’t always equate to a happy ending for everyone.   Sometimes employers are left in the unenviable position of deciding which lawsuit they would rather defend: the one that says   "The Company cared too much, and got too involved" or the one in which you are left saying, "Did I mention he could have gone to the EAP?"