Q&A: Mandatory EAP referral doesn’t mean you perceived disability
Q&ADisabilityTermination & Resignation
Question: We have an employee who is acting strangely, including making paranoid comments about coworkers sabotaging her work. I investigated, but found no evidence to support her allegations. The employee continues to complain. Can we require her to contact our Employee Assistance Program (EAP) and attend any counseling sessions recommended by the EAP counselor or does that put us into a situation where we are “regarding” the employee as disabled?
Answer: Yes, in situations such as this one, you can require an employee to attend EAP counseling sessions and provide proof of attendance. These actions alone don’t amount to regarding the employee as having a disability under the Americans with Disabilities Act (ADA). However, if your comments or other actions treat the employee as if she has a mental disability, then your organization is regarding her as disabled. The ADA protects workers with a perceived disability from discrimination. As the employer, if you take any employment action against this employee, you must ensure it’s based on job performance, failure to follow reasonable rules and expectations, or the employee’s creation of a safety risk to herself or others. Recently a court sided with an employer who terminated an employee for refusing to sign a disclosure form allowing an EAP counseling office to release proof of attendance to the employer. The court said that the employer could mandate EAP counseling and seek evidence of attendance. The court also said the termination wasn’t because of any potential mental disability but because the employee refused to sign the disclosure form (Walker v. Children’s Hospital of Wisconsin, ED Wis, Nov. 2019).
Don’t treat your employee as if she has an impairment or change her job duties. Only refer employees for mandatory EAP assessment if the facts warrant it and if the referral is consistent with your organization’s treatment of other employees. You may also include an EAP referral as part of a last chance agreement, but again its use should be necessary based upon the individual facts and consistent with your treatment of other similarly situated employees. For more information, see our Legal Guide, ADA: Regarded as a Disability, and call your Vigilant employment attorney for advice.