Requiring employees to attend EAP visits could cross a line
A popular company benefit, applied incorrectly, could lead to violations of employment laws overseen by the Equal Employment Opportunity Commission (EEOC).
Many employers offer employees the complimentary benefit of an employee assistance program (EAP) that provides confidential counseling to employees and their families. Private sessions address a wide variety of personal problems such as mental health issues, financial troubles, and relationship conflicts. Typically, an EAP allows for about eight free sessions, sometimes per issue, depending on a company’s contract with the provider.
Employers might refer employees to an EAP. Such referrals can be informal or formal.
An informal referral might happen if an employee mentions some personal struggles during a one-on-one meeting, and the supervisor tells the employee about the availability of the EAP resources and how to access them.
A formal referral, such as anger management courses, might be part of a performance improvement plan (PIP) if an employee’s job performance is declining. Attending appointments in a case like this must be considered paid hours.
Formal referrals, however, might be a risky job requirement as it could veer into a mandatory medical examination, which isn’t allowed under certain situations, as this employer found out.
Grocery store fired employee for refusing to attend EAP visits
The EEOC filed a suit against a Pennsylvania grocery store chain when a female employee refused to participate in the company’s EAP. The company subsequently suspended and fired her.
According to the lawsuit, a male supervisor at one of the stores subjected the female employee to a sexually hostile work environment that included:
- Unwanted physical contact.
- Sexual comments.
Another supervisor witnessed some of these behaviors but didn’t try to stop it. When the employee reported the harassment to the general manager, no reasonable action was taken to end the harassment and prevent its reoccurrence, the EEOC charged.
The EEOC’s lawsuit also alleged that the employer later required the employee to participate in the company’s EAP as a mandatory condition of her continuing employment.
This would have included mental health counseling, even though the company lacked any reasonable belief, based on objective evidence, that the employee:
- Was unable to perform the essential functions of her job because of a medical condition, or
- Presented a direct threat to herself or others because of a medical condition.
The settlement and aftermath
The EEOC and the employer settled the case. On June 17, the federal court approved the settlement, resolving the litigation. In addition to paying $75,000 to the employee, the employer agreed to certain conditions, such as, the company is prohibited from:
- Creating a sexually hostile work environment,
- Requiring employees to participate in the EAP when that would entail unlawful medical examinations or disability-related inquiries, and
- Taking adverse actions against employees because they refused to undergo unlawful medical examinations or disability-related inquiries in the EAP.
EEOC Philadelphia District Director Jamie Williamson said, “Company-sponsored employee assistance programs are valuable resources for employees to seek and receive support for their personal and professional well-being and often involve delivery of behavioral health services. But an employer requirement that an individual worker must participate may very well violate rights protected by the Americans with Disabilities Act, including the right to be free from medical examinations and disability-related inquiries that are not job-related and consistent with business necessity.”
U.S. EEOC v. Weis Markets, Inc., Civil Action No. 1:23-cv-01767
Key to remember: While in certain situations, an employer may require an employee to attend EAP visits, it must be based on objective reasons that pertain to the job, and that time must be paid.
