Sara Abarbanel and Jacqueline Hayduk Assess Best Practices for Employee Assistance Programs

Best Practices For Effective Employee Assistance Programs

This article was originally published in Law360 on November 26, 2024, and is republished here with permission.

Employee assistance programs have become an extremely common benefit offered by U.S. employers.

For example, according to the International Employee Assistance Professionals Association, approximately 97% of U.S. companies with more than 5,000 workers, 80% of U.S. companies with 1,001-5,000 workers, and 75% of U.S. companies with 251-1,000 workers, offer EAPs.[1]

The prevalence of EAPs is likely due in part to employers trying to retain talent and stay competitive in the job market by offering comprehensive benefits — particularly health and wellness benefits, because wellness and self-care have become increasingly important to workers in recent years.

The health and wellness train is not losing speed.

In fact, according to a survey published in January conducted by McKinsey & Company, in the U.S. alone, the wellness market has reached $480 billion, growing at 5 to 10 % per year.[2] Employers across the U.S. have followed the trend and increased their offering of health and wellness benefits, such as employer sponsored subscriptions to wellness apps, on-site fitness centers, childcare and healthy food options, fitness challenges, telehealth services and EAPs.

Here is what employers using or considering implementing EAPs need to know.

Refresher on EAPs

An EAP can serve a business and its employees in many ways, but at their core EAPs provide support and assistance to employees and their family members experiencing personal difficulties.

EAPs are a workplace benefit that help employees manage everyday challenges that could negatively affect their personal life and/or work. EAPs can include a range of services provided by third-party professionals to address mental health concerns, substance abuse, grief and family problems, professional development and training, and financial or legal concerns.

EAPs typically involve short-term counseling, referrals and/or follow-up services to help employees manage life’s challenges. Sometimes EAPs also help employees prevent or cope with workplace violence or other critical incident situations.

The purpose of EAPs is to provide employees with support to manage life’s challenges, which in turn enables employees to be more efficient, productive and engaged in their work. EAPs are a valuable resource that can help employees with personal challenges that are distracting and affect their ability to perform at their full potential.

EAPs can help reduce absenteeism, improve employee productivity and mitigate costs related to employee attrition. Indeed, according to the U.S. Department of Labor, employers generally save anywhere from $5 to $16 for every dollar invested in an EAP.

The services offered through an EAP are generally free and confidential. Employees can access EAP services through self-referral, an informal referral by a colleague or a formal referral based on the recommendation of a manager or HR professional. Although most EAP referrals will be voluntary, mandatory referrals based on poor performance or disciplinary issues raise specific legal considerations, which are discussed below.

Best Practices

Employers should consider the following best practices when implementing EAPs.

Have a clearly defined policy.

The Employee Assistance Professionals Association standards[3] require EAPs to have written policies that ensure client confidentiality, a formal procedure for monitoring employees who use the EAP and a sufficient number of trained employee assistance professionals to provide the applicable services.

Additionally, the Employee Assistance Professionals Association recommends that employers offering EAPs have a written policy that defines the employer’s relationship with the EAP, including specifying the scope and limitations of services.

Employers should make sure their policy clearly defines the purpose and process of the EAP. Employers should consult the Employee Assistance Professionals Association standards for other requirements pertaining to EAPs and EAP policies.

Promote your EAP to employees.

In order for employees to gain maximum benefit from the EAP — and employers maximum return on investment — employees need to actually use the EAP. It is crucial that employees understand what the EAP really offers, since many employees are not aware of the various services contemporary EAPs offer.

Employers should educate employees about their EAP’s services during orientation, the open benefits enrollment period, and by disseminating FAQs. Employers can also consider offering webinars or periodic lunch-and-learns on the same.

Ensure EAPs align with DEI practices.

Employers should make sure their EAP’s services and delivery model align with their diversity, equity and inclusion initiatives.

This includes, but is not limited to, using inclusive messaging, offering promotional materials and resources in different languages, and ensuring service professionals are equipped to handle language barriers, as well as sensitivity to particular cultural needs and cultural stigmas around mental health services.

Protect confidentiality and privacy.

Employers should make clear in their EAP policies that employee information will be kept strictly confidential. This includes not only what the employee discusses during a session with the EAP professional, but also individually identifiable information: for example, the identity of the employee utilizing the EAP and the time and frequency of employee participation in the EAP.

Certain states, such as Washington, have made it the law that this type of information must be kept private — with some caveats.[4] This need not keep the employer from obtaining general utilization information and statistics from the EAP.

Communicate to employees that an EAP provider will keep their information private, with the exception of situations in which the life or safety of the employee of another person(s) is seriously threatened.

Avoid discrimination pitfalls.

Employers may encourage employees to use the EAP if and when needed, or provide information on EAP services when an employee discloses a particular issue. However, mandating an employee’s use of an EAP may implicate the Americans with Disabilities Act and state equivalents.

The ADA prohibits employers from discriminating against a qualified individual who has or who is perceived as having a disability. The U.S. Equal Employment Opportunity Commission, in a July 19, 2000, informal discussion letter, noted that even 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.”[5]

In June, in U.S. EEOC v. Weis Markets Inc. in the U.S. District Court for the Middle District of Pennsylvania, the EEOC settled a case in which the employer, Weis Markets Inc., required an employee to participate in the EAP as a condition of continued employment.[6] The EAP required the employee to release medical information to the company, which the company would use to determine if the employee would be put on disability leave. The employee refused.

In a statement at the time the case was filed, the EEOC stated that the employer’s program was unlawful under the ADA, which “prohibits requiring employees to undergo medical examinations or answer questions that are likely to reveal whether they have disabilities unless the employer can show the examinations or inquiries are job-related and consistent with business necessity.”[7]

If considering a mandatory referral to an EAP, keep in mind the circumstances around the referral and if the program requires disclosure of medical or mental health information or evaluation, if the referral is job-related and consistent with business necessity.

Conclusion

An EAP can be a powerful tool for employers and employees alike. Keeping in mind the benefits and best practices can help employers provide their employees with an EAP program with value to both.

[1] https://eapassn.org/page/FAQEAPA.

[2] https://www.mckinsey.com/industries/consumer-packaged-goods/our-insights/the-trends-defining-the-1-point-8-trillion-dollar-global-wellness-market-in-2024.

[3] https://cdn.ymaws.com/eapassn.org/resource/resmgr/eapa_standards_and_professio.pdf.

[4] https://lawfilesext.leg.wa.gov/biennium/2021-22/Pdf/Bills/Session%20Laws/Senate/5564-S.SL.pdf?q=20241115230900.

[5] https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-7.

[6] https://www.eeoc.gov/newsroom/weis-markets-pay-75000-eeoc-sexual-harassment-disability-discrimination-suit.

[7] https://www.eeoc.gov/newsroom/eeoc-sues-weis-markets-sexual-harassment-and-unlawful-use-employee-assistance-program.