Can EAP Use Be Required by an Employer?
Question: Can we require our employees to use an employee-assistance program? We have an employee who made a physical threat against her supervisor to a member of HR. We want to make that employee consult with a therapist at an EAP as a condition for that employee being able to return to work, as we are concerned that she may have emotional problems. Are we allowed to require that this or any other employee consult with an EAP as a condition for maintaining his or her job? Are there any laws that we risk breaking if we do this?
Answer: There is no federal law that prohibits an employer from requiring an employee to use an employee assistance program. However, requiring an employee to use an EAP may implicate the federal law against disability discrimination, the Americans with Disability Act. Therefore, employers should be wary of requiring an employee to use an EAP, and should make sure that any requirement that an employee use an EAP is "job-related and consistent with business necessity."
Employee-assistance programs are incredibly effective in providing employees who have personal or professional issues in the workplace with an opportunity to improve their performance. Nonetheless, employers should be wary of requiring an employee to enter an EAP, as the Equal Employment Opportunity Commission has indicated that it can violate the ADA, depending on the facts of the case.
The Americans with Disability Act
The ADA prohibits employers from discriminating against a qualified individual on the basis of a disability. A person is a "qualified individual with a disability" so long as they can perform the essential functions of the job with (or without) a reasonable accommodation. The ADA protects both individuals with a disability and individuals who are treated as if they have a disability. In 2000, the EEOC noted in an informal discussion letter that requiring an employee to use an EAP may violate the prohibition of treating an employee as if they have a disability. The EEOC stated that, while "[i]t is unlikely that a mere referral to an EAP, by itself, would be sufficient" to show that the employer treated the employee as having a disability, "a referral to an EAP in combination with other relevant evidence could raise an inference that the employer regarded the person as having a [disability]." Letter, Christopher J. Kuczynski, Assistant Legal Counsel, ADA Policy Division, Equal Employment Opportunity Commission, (July 19, 2000).
Recent court cases have highlighted further issues with requiring employees to use an EAP. The ADA also prohibits an employer from "[requiring] a medical examination . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). In a case out of the Sixth Circuit Court of Appeals, the court ruled that an employer can violate this provision of the ADA by requiring an employee to use an EAP. In the case, the employee was in the midst of a volatile workplace romantic relationship, and co-workers reported concerns that the employee was behaving erratically and possibly contemplating suicide. Her employer informed her that she would have to seek counseling, either through the company's EAP or with another medical professional, if she wanted to continue her employment. While the court did not decide whether the employer had violated the ADA, the court held that mandatory psychological counseling constitutes a "medical examination" and therefore could violate the ADA unless it was "consistent with business necessity." Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 819 (6th Cir. 2012).
In sum, while an employer can require an employee to go to an EAP, they will be required to jump through some legal hurdles in order to avoid potential liability. They must first show that the recommendation was not made because of a belief that the employee suffers from a disability, which can include mental-health issues. If they cannot do so, an employer can require a medical examination, such as counseling through an EAP, yet the counseling must be job-related and consistent with business necessity. This is a heavy burden for employers to meet, and requires an employer to focus solely on an employee's job performance and to have meticulous documentation of performance issues. As a practical matter, while EAPs are invaluable tools, employers are on much stronger ground when an employee voluntarily chooses to take advantage of an EAP.
As a final note, in a case where an employee with a possible mental-health disability makes a threat against a co-worker, courts have held that the employee can be terminated regardless of his or her disability. The Second Circuit Court of Appeals held that, "[a]n employer may discipline or terminate an individual who, because of disability, makes a threat against other employees if the same discipline would be imposed on a non-disabled employee engaged in the same conduct." Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 171 (2d Cir. 2006). Therefore, while an employer's ability to mandate use of an EAP is limited, the employer can terminate the employee, depending on the additional facts in the case, without fear of a strong ADA claim.
Keisha-Ann G. Gray is a partner in Proskauer's labor and employment department, resident in the firm's New York office. Proskauer Associate Yonatan L. Boder-Grossman, also in the firm's New York office, assisted with this article.