What are there legal risks of making a worker participate in an Employee Assistance Program?

Suppose that several employees complain that a coworker is creating a “hostile work environment” because they were afraid that she (the coworker) was going to report them (the employees) for engaging in unspecified misconduct in the workplace.

Can the employer respond by mandating an Employee Assistance Program (EAP) referral as a condition of the coworker’s continued employment?

What if I told you that the employer also required the coworker to authorize the release to the employer clinical records that the EAP maintained about the coworker so that the employer could determine whether the coworker needed short-term disability leave?

(Aren’t you glad you decided to enter a career in Human Resources?)

These allegations are from a recent lawsuit that the U.S. Equal Employment Opportunity Commission filed in federal court. The EEOC further alleges that when the coworker (who herself had accused another employee of sexual harassment) refused to participate in the mandatory EAP referral, the employer fired her.

According to the EEOC, and consistent with its “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA,” employers violate the Americans with Disabilities Act (ADA) by “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.”

The EEOC claims that the employer lacked a reasonable belief that the coworker could not perform one or more essential functions of her job because a medical condition impaired her or that she posed a direct threat to herself or others.

As this court notes, an employer may also request medical information when needed to evaluate an employee’s request for a workplace accommodation:

“A medical examination is permissible only if there is significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job. Behavior that is ‘merely annoying or inefficient’ cannot justify a request for an exam.”

Additionally, the EEOC warns that employers cannot retaliate against employees for opposing an unlawful, mandatory EAP referral and “interfering with employees’ exercise and enjoyment of ADA rights, including the right to be free from illegal medical examinations and disability-related inquiries.”

Consider these issues before requiring an EAP referral for one of your employees. And above all, consult with an employment lawyer first.