Can an employer require an employee to use the services of an employee assistance program?

Situations in which an employer may mandate the use of an employee assistance program (EAP) are rare. The Employee Assistance Professionals Association (EAPA) in its Standards and Professional Guidelines indicates, "Employees may voluntarily seek EAP assistance, or they may be referred to the EAP through constructive confrontation. Job security will not be jeopardized as a consequence of seeking or using EAP services, except where mandated by law. However, employees who use an EAP are expected to adhere to the job performance requirements of the organization." Employers are urged to consult with legal counsel when deciding on a standing mandatory EAP referral policy or for use in specific circumstances.

In general, an EAP referral is typically a matter of agreement between the employer and the employee. Employers often provide information on EAP services to employees when there are performance issues or when the employee has disclosed to the employer that he or she is having difficulty dealing with personal issues. In extreme cases, such as workplace violence threats or suicidal thoughts, employers may consider a mandatory referral to an EAP. However, mandating EAP services may have implications under the Americans with Disabilities Act (ADA), which protects individuals who either have or are perceived to have a disability, including a mental disability, and a mandatory EAP referral could be interpreted that the employer perceives an employee to have a disability even if he or she does not. Taking action, such as termination, against an employee who refuses the EAP referral or does not comply with treatment may result in claims of disability discrimination based on a perceived disability.

Employers should focus on the employee's job performance rather than on a real or perceived medical condition when making a mandatory EAP referral to avoid discrimination claims. Avoid  forcing an employee with a disability to choose between EAP participation and discipline in situations where other employees would not be disciplined. For example, an employer may refer a group of co-workers who are having problems getting along at work for assistance with interpersonal skills; however, the employer should not single out an individual for such referral because he or she has or is perceived as having a disability that is interfering with his or her ability to get along with co-workers.

More common are "formal" referrals to an EAP in which the employer provides a written referral for the employee based on specific work-related issues. A formal referral is not mandatory and does not result in disciplinary action for noncompliance. Employers should focus on the job performance and discipline employees according to their established performance and conduct standards.