Just Because you Offer an EAP Plan Doesn’t Mean Employees Have to Use it

Just when you think people are getting smarter, here’s a crazy story that goes from bad to worse. I am calling this “three strikes and you are sued!” Weis Markets recently fired an employee when she refused to participate in the company's employee assistance program (EAP), and now they are being sued by the U.S. Equal Employment Opportunity Commission (EEOC). Read on to see the three mistakes made that resulted in a lawsuit.

• Mistake Number One:  The EEOC said a supervisor at Weis Markets' Mifflintown, Pa., store made frequent sexual comments in the workplace, often winked at the employee, kissed her without consent and made statements indicating his propensity to commit violent acts. After the employee reported the sexual harassment and the supervisor admitted some of his conduct, the company failed to take reasonable corrective action against the supervisor.
• Mistake Number Two: After the employee's sexual harassment complaint, the company told her that co-workers had complained about her, and as a result, she would be required to participate in the EAP. A formal referral is not mandatory and does not result in disciplinary action for noncompliance. In this case, a company official confirmed to the employee that the referral was to determine whether she would be placed on disability leave.
• Mistake Number Three: When the employee refused to comply with the mandatory EAP referral, Weis Markets suspended her without pay and ultimately fired her. The EEOC stated that the alleged conduct violates the Americans with Disabilities Act (ADA)—which prohibits employers from 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 ADA also prohibits retaliating against employees for opposing illegal practices, such as requiring someone to use an EAP.

Time for a Lawsuit

In October, the EEOC sued Weis Markets for “Sexual Harassment and Unlawful Use of Employee Assistance Program” charging that the grocery chain subjected the employee to Sexual Harassment and then fired her for refusing to cooperate with an illegal medical exam. "Employees have a right under the ADA not to be forced by their employers to participate in medical exams and inquiries that are not job-related and consistent with business necessity," said Jamie Williamson, the EEOC's Philadelphia district director. "The EEOC will not permit employers to interfere with that important ADA right or to retaliate against employees who exercise it."

More About EAPs

An employee assistance program (EAP) is a voluntary, work-based program that offers free and confidential assessments, short-term counseling, referrals and follow up services to employees who have personal and/or work related problems. Traditionally, EAPs assisted workers with issues like alcohol or substance misuse; however, most now cover a broad range of issues such as child or elder care, relationship challenges, financial or legal problems, wellness matters and traumatic events like workplace violence. These programs are free for employees and offered by stand-alone EAP vendors or providers who are part of comprehensive health insurance plans.

EAPs that offer medical benefits such as direct counseling and treatment rather than just referrals for counseling and treatment are regulated under ERISA and subject to COBRA. Generally, EAPs are confidential, meaning the employer won't find out about any information employees discuss with the EAP, such as medical diagnoses or family problems. EAPs in California are subject to the federal Health Information Portability and Accountability Act (HIPAA). Under HIPAA, an employer cannot require an employee to disclose personal medical information.