By Barbara Haga

We recently had an inquiry from a reader about whether there is ever a time when a supervisor could legally direct an employee to seek Employee Assistance Program (EAP) services.  This brought up a number of issues and considerations that seemed like a good topic to address in the next few columns.

Background

5 USC 7901 authorizes agencies to create a health services program to promote and maintain the physical and mental fitness of employees.  The law, originally enacted in 1966, did not require such programs but authorized agencies to create them and operate them with appropriated funds.

OPM has identified a number of other laws, Executive Orders, and regulations that have addressed certain kinds of specific coverage on the EAP page of the OPM website:  (https://www.opm.gov/policy-data-oversight/worklife/employee-assistance-programs/#url=Guidance-Legislation).  Most of these additions are focused on drug and alcohol issues:

  • Public Law 99-570 (5 USC 7361 and 7362), The Federal Employee Substance Abuse Education and Treatment Act of 1986, and 5 CFR 792 require Federal agencies to establish appropriate prevention, treatment, and rehabilitative programs and services for alcohol and drug abuse problems for Federal civilian employees.
  • Public Laws 96-180 and 96-181 authorize agencies to extend counseling services, to the extent feasible, to family members of employees who have alcohol and drug problems, and to employees with family members who have substance abuse problems.
  • Public Law 79-658 authorizes the head of agency to establish health services programs for employees, also forms the basis for expanding counseling programs from those dealing solely with substance abuse to broad range programs which provide counseling for other personal problems, e.g., family, financial, marital, etc.
  • Executive Order 12564 requires agencies to establish a Drug-free Federal Workplace Program (DFWP), including an EAP as an essential element in achieving a drug-free workforce.

EAPs are voluntary, confidential programs that provide counseling and assessment to employees whose work performance and conduct are being affected by covered issues.

Mandatory Referral or Directed Participation?

There is a difference between mandatory referral to an EAP and requiring an employee to actually participate.  Referral requirements are common as discussed below. There is nothing I have found in my experience that would allow management to make an employee participate.  Even if you could, the information is still protected, so unless the employee consented to release, you still wouldn’t have what you would wanted.  Unfortunately, our laws and employment practices protect employees’ rights not to take care of themselves and not to take prescribed medication and not to take advantage of services and/or medical care that are offered with the best of intentions.

Mandatory referral is quite another thing.  We include the information in a notice or have a supervisor advise an employee that he or she is being referred.  Sometimes that includes an appointment that has already been set up with directions of where to go.  Mandatory referral may arise in these situations:

Federal Drug-Free Workplace Program (DFWP).  Section 2(b) of EO 12564 signed by President Reagan on September 17, 1986 included provisions regarding use of employee assistance for counseling and supervisory referrals for rehabilitation.  http://www.samhsa.gov/sites/default/files/executive_order.pdf. The model Federal agency plan issued by Substance Abuse and Mental Health Services Administration (SAMHSA) is available at this link: http://www.samhsa.gov/sites/default/files/workplace/ModelPlan508.pdf.  The plan states on p. 12 that “Any employee found to be using drugs shall be referred to the EAP.”

Collective Bargaining Agreements.  It is common that language has been negotiated in union contracts which requires management to make referrals in certain situations.  I would surmise that the union’s goal is to get the employee into an EAP program at the earliest possible time thus minimizing the possibility of some kind of performance or conduct action being initiated/effected.  Of course, with such referrals being included in the agreement, if that step is missed there is an issue of failure to live up to the terms of the agreement which would likely arise in any ensuing grievance or appeal.

Agency Directives.  Some agency policies include requirements for including EAP referrals in certain circumstances and/or in conjunction with disciplinary actions.  An agency could require referral if an employee is found to be in possession of alcohol on duty or under the influence of alcohol on duty.  There may be requirements for referral when there are altercations in the workplace or other similar issues.  Some agency policies build in a requirement to include EAP referral information in proposed disciplinary notices.

Mandatory Referral or Creative use of Referrals?

While we may not be able to make a mandatory referral, we can be creative in trying to ensure that an employee actually participates.  Once when working on a disciplinary case regarding an employee who was struggling with emotional illness issues, I arranged for the EAP counselor to be in a conference room down the hall while the disciplinary letter was being delivered.  The letter gave the referral information and said we had someone available to speak with her right then.  When the manager finished his part of the meeting, I asked the employee if she would be willing to talk to the counselor and she said she would, so I walked her down to the conference room.  I can’t recall what eventually happened with that case, but I distinctly remember that the employee seemed surprised that someone was immediately available and was grateful to have a chance to talk to someone.

EAP is one place where management’s and union’s goals are more closely aligned than many other areas.  The goal is to help an employee solve a problem and remain a productive member of the workforce.  If you have the kind of relationship with a union representative that would allow this, you could try to present a coordinated front in a meeting with both management and union there.  The manager would say that he or she needs to deal with the situation but sees that the employee seems to be struggling with something that is coming to work with them from home.  Management doesn’t want to have to initiate discipline if the employee will take steps to deal with the underlying issue.  Have the union official there to talk about the program and hopefully that it has helped other people and that the employee should try and see if it could be of assistance.  Perhaps the union official could be the one to escort employees to where they need to go or to sit with them as they dial in to FOH or some other service.

One thing about getting the union to join in is that they can talk to an employee in a way that management can’t. They can tell the employee in frank terms that the last person who had these kinds of issues ended up getting fired, or better yet, that the last person who had these kinds of issues got themselves straightened out and made a comeback and is still working there.  If management said that the last person got fired it might come across as a threat – but when the union does it, they are helping! It’s something to think about. Haga@FELTG.com

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