Q: Why Are Employee Health Services Programs Needed?
Many of the leading causes of death and disability in the United States are largely preventable through early detection, intervention and behavior changes. Your agency can adopt health policies and programs to:
Because most working Americans spend at least 30 percent of their time at work, the workplace is a logical place for employees to receive preventive health services. President Bush's HealthierUS Initiative recognizes the roles of worksites, specifically Federal worksites, in improving the health of the Nation. The HealthierUS Working Group stated, in its report to the President, "With approximately 1.7 million employees, Federal agencies have both an obligation and an enormous opportunity to offer programs and support mechanisms to improve the health of their workforce. In doing so, they can serve as examples of how employers can help alleviate the chronic disease epidemic our Nation faces." Additionally, the Department of Health and Human Services' Healthy People 2010 (health objectives for the Nation) calls for more worksites to offer comprehensive health promotion programs to their employees.
Under 5 CFR Part 792 agencies must provide employee assistance programs to assist employees with drug and alcohol abuse prevention, treatment, and rehabilitation (see Appendix 1). Under 5 U.S.C. 7901, agencies may establish, within the appropriation limits available, health services programs to promote the physical and mental fitness of employees (see Appendix 2).
Q: What is the Purpose of This Handbook?
The U.S. Office of Personnel Management (OPM), in cooperation with the Department of Health and Human Services, provides policy and guidance on Federal civilian employee health and assistance programs. This handbook provides policy guidance to assist agency management and program administrators in developing and administering comprehensive employee health services programs.
Q: How Do I Use This Handbook?
There are many ways to administer employee health services programs. This handbook uses a question and answer format to address the most common administrative issues. The handbook is divided into the following areas:
If you have any questions regarding the topics in this handbook or anything related to employee health services, please call or write:
The names of some non-U.S. Government resources have been included in this booklet merely as an initial information service to the reader. The mention of providers by name does not constitute official sanction or endorsement of the provider by the U.S. Office of Personnel Management or the U.S. Government. Not all resources could be included in this handbook because of space constraints and other considerations. Readers and service providers who would like to suggest other resources for inclusion in any future revision of the handbook may send the name, address, and description of services to: U.S. Office of Personnel Management, Office of Work/Life Group, Room 7425, 1900 E Street, NW, Washington, DC 20415.
In any locality, there may be many reputable individuals, agencies, associations and companies that can provide the reader with additional resources. Before contracting for services, readers are encouraged to contact information sources and service providers directly for additional information, to determine which provider can best serve their needs.
Due to the rapidly changing work environment and the evolving field of employee health and assistance, care needs to be taken to use the most current guidelines available. This handbook attempts to reflect the most recent concerns, recommendations, regulations, and resources available at the time of its publication.
Administering Employee Health Programs
Q: May We Establish Employee Health Programs?
Your agency is authorized to establish employee health programs within available appropriations to promote and maintain the physical and mental fitness of employees. Employee health programs are authorized under 5 U.S.C.§7901.
See Appendix 3 for a chronology of events and policies supporting employee health programs.
Q: What Constitutes an Employee Health Program?
Employee health programs are most commonly provided to employees through health units located at the workplace. The basic programs include preventive services such as immunizations, physical examinations, and medical screening tests, etc.
Q: What Constitutes an Employee Health Program? (continued)
Over the past few decades, many agencies have expanded the traditional scope of services, and established more comprehensive programs. These programs place more emphasis on physical fitness, health education, intervention activities, and preventive health screenings.
Employee health programs are now widely established and accepted as a valuable resource for enhancing work force effectiveness.
Q: What Services May We Provide?
Agencies are currently offering a wide variety of health services. Your agency chooses the services that best meet its needs. The level of services will vary from agency to agency.
Under 5 U.S.C. §7901, agencies are authorized to offer the following employee health services:
Emergency Response/First Aid
Your agency's qualified medical staff may provide first response and Cardiopulmonary Resuscitation (CPR) for emergencies as well as assessment and initial treatment/first aid to employees who are injured, or become ill during work hours.
Administration of Treatments and Medications
If furnished by the employee and prescribed in writing by his/her personal physician, your agency's qualified medical staff may administer treatment/medication during working hours.
Your agency's qualified medical staff may administer properly authorized pre-placement and periodic physical examinations to assess an employee's health status. Based on the results of the exam and/or testing, medical staff may refer employees to the Employee Assistance Program (EAP), private physicians, dentists, and other community health resources.
Environmental Health Hazards Appraisals
Your agency may appraise and report work environment health hazards to department management as an aid in preventing and controlling health risks.
Your agency may provide health education to encourage employees to maintain a healthy lifestyle, to understand their risk for disease, and to become aware of appropriate preventive practices. For example, your agency may provide health education through health questionnaires, health risk appraisals, health fairs, newsletters, brochures, and presentations.
Health Services/ Intervention Programs
Your agency may provide health intervention programs to promote and maintain physical and mental fitness and to help prevent illness and disease. Health Services/ Intervention Programs encourage and enable employees to initiate healthy behavior changes. Your agency may offer group activities and classes, individual counseling, demonstrations, and self help materials.
Q: What Services May We Provide?
Disease Screening Examinations and Immunizations
Specific preventive health screenings or examinations may be sponsored at the workplace to detect the presence or risk of disease. Common workplace screenings include exams for blood pressure, mammography, blood lipids, glucose, vision and hearing. Medical staff may provide employees with immunizations, such as influenza and tetanus.
Physical Fitness Programs and Facilities
Your agency may establish and operate physical fitness programs and facilities designed to promote and maintain employee health. Your agency may establish on-site fitness facilities or use the services of a private facility. Activities may be offered without special facilities.
Fitness programs include activities such as walking clubs/events, aerobic exercise classes, weight lifting instruction, stretching classes, fun runs, lectures on safe participation, and fitness assessments.
Fitness assessments are physical tests that assess an employee's level of fitness as compared to his/her peers. The fitness assessment might include a one-minute sit up and push up test, 1.5 mile run, sit-and-reach flexibility test, body fat analysis, and three-minute step test.
Public Access Defibrillation Programs
Federal agencies electing to establish a public access defibrillation program in a Federal facility must follow the guidelines contained in "Guidelines for Public Access Defibrillation Programs in Federal Facilities," a product collaboratively produced by the General Services Administration and the Department of Health and Human Services. The guidebook may be obtained through a search from www.gsa.gov, by calling 202-501-0365, or by writing the Office of Real Property (MP), General Services Administration, 1800 F Street, NW, Washington, DC 20405. See Appendix 5, where a portion of FMR Part 102-79, specifically 102.79.65, references public access defibrillation programs in Federal facilities.
Q: What are the Agency's Responsibilities?It is your agency's responsibility to:
*For agencies in GSA-controlled space establishing health services programs, consult the GSA Customer Guide to Real Property, a publication of the Public Building Service. Search the GSA web site at www.gsa.gov or call 202-501-1100.
Q: How Are Employee Health Programs Administered?
Your agency must determine the best way to provide employee health programs based on the scope of the program and available resources. The level of services and methods for administering programs will be particular to your agency.
Your program may be comprehensive or single-focused. According to the Department of Health and Human Service's Healthy People 2010, comprehensive programs must have the following elements:
The availability of resources (funding, space, and staff) will define the type of programs your agency can offer. Your program can be:
Q: May Agencies Share Employee Health Programs?
Single Agency/Multi-Agency Program
Depending on its size and mission, your agency must determine whether to create its own program or share services with other agencies. Sometimes it is more cost effective to share employee health services and facilities with other agencies in the same building or geographic location. This can be done through interagency agreements or consortia.
To share services, your agency may enter into an interagency agreement on a reimbursable basis with another Federal agency. This process offers a convenient alternative to contracting and is often quicker and less cumbersome than the contracting process. As with contracting, your agency may choose to use one agreement to provide either all of its employee health services or just specific services such as periodic examinations.
The Economy Act, 31 U.S.C. §1535, gives agencies authority to enter into interagency agreements with other Federal agencies.
When no single agency can serve as a provider for smaller neighboring agencies, the combined employee populations may contract for a consortium for a single health program to provide to participating agency employees.
One lead agency generally serves as the contracting agency. The lead agency enters into a contract or agreement with a service provider. Participating agencies are linked to the contract via an interagency agreement with the lead agency. Work with your contracting office for appropriate contracting procedures.
Your agency may use the Cooperative Administrative Support Unit (CASU) program of the General Services Administration as another type of consortium. CASU organizations establish the legal and administrative framework for Federal offices to share services (including health and fitness centers and health services).
Under this option, Federal tenants, located in the same or nearby facilities, establish and manage an administrative support unit that provides commonly needed services on a reimbursable basis. Such services may include, among others, health and fitness facilities and services. A tenant Board of Directors guides each local CASU. The CASU organization contracts with a vendor to provide the needed services. For further details, agencies can contact GSA's Telework and Innovative Workplaces and CASU at 202-273-4660.
Q: How Do We Staff and Manage Our Employee Health Programs?
Your agency may choose to staff and manage your employee health programs from a variety of options. Your agency should ensure that the staff persons delivering health services are qualified and trained.
Your agency may hire employees or use existing agency personnel to develop, manage, and deliver programs. The staff may be employed either full time, part-time, or assigned the duties on a collateral basis. Many agencies organize all of their employee health staff and programs into one division for more efficient coordination. Sometimes agencies form employee health committees with representatives from various offices to integrate services, coordinate, and promote programs.
Contracting with qualified vendors to develop, manage, and deliver programs is a viable option for many agencies. Your agency might find a vendor through:
Your agency might choose to use one contractor to provide a comprehensive program or contract for a specific service such as a health risk appraisal program or an annual health fair. Contact your contracting office for appropriate contracting procedures.
Your agency may also provide many health activities through volunteer or no-cost arrangements.
A qualified volunteer employee might give a lunch time presentation on preparing for a 10K run. An intern from a local university could conduct fitness evaluations. A volunteer employee wellness committee could organize a lunchtime walking club.
A non-profit health organization might provide free speakers for a wellness education series. Many of these local organizations provide free materials such as pamphlets, videos, and posters, especially if they tie in to a national health campaign such as the Great American Smokeout.
Many agencies with offices across the country rely on volunteer employees to coordinate and communicate health promotion activities. Your agency should ensure that volunteers have the skill, qualifications, and knowledge to deliver health activities.
Federal Occupational Health
Many agencies use the services of Federal Occupational Health (FOH) of the U.S. Public Health Service. FOH can provide clinical services, environmental health services, on-site health clinics, wellness/fitness centers, and employee assistance programs to Federal agencies via interagency agreements. Call 1-800-457-9808, or visit www.foh.dhhs.gov.
Non-Profit Employee Organization
In many agencies, employees form non-profit employee organizations such as a recreation association or an employee board to manage fitness facilities or administer health activities.
An employee organization is comprised of interested employees who deliver organized activities and programs for their fellow employees in a structured format supported by company management. An employee organization may hire its own staff or use vendors to provide services. The organization collects fees from participating employees to cover the operating costs.
Your agency may provide Government resources to support employee organizations in accordance with appropriate General Services Administration regulations contained in Title 41 of the Code of Federal Regulations. The agency may pay for the rent and maintenance of space, and the start-up costs of fitness facilities managed by employee organizations. If there are membership costs, your agency may arrange fee collection through payroll deduction.
For more information on fee collection, see Chapter 2, Providing Physical Fitness Programs. See Appendix 4 for a sample management contract.
5 CFR Part 251 provides regulations governing agency relations with managerial, supervisory, professional, and other organizations that are not labor organizations.
Section 251.101 (d) of 5 CFR Part 251 cautions that "an agency's consultation and communication with organizations representing Federal employees...may not take on the character of negotiations or consultations regarding conditions of employment of bargaining unit employees, which is reserved exclusively to labor organizations as provided for in Chapter 71 of title 5 of the U.S. Code..." (5 CFR 251 does not mandate the establishment of relationships with non-labor organizations, other than supervisory/managerial associations.)
Q: Do We Need Special Facilities to Provide Employee Health Programs?
Employee health programs and activities require different types of space and facilities. Agencies may use existing space for educational seminars, meetings, health assessments, or a video/health education library, for example. Your agency is authorized to establish on-site health and fitness facilities and health units. The General Services Administration provides or arranges for space and equipment for EAPs, health units, and fitness facilities in Federally owned and leased buildings.
Health and Fitness Facilities
Your agency is authorized to establish an on-site fitness facility for its employees for physical fitness activities, comprehensive health education and intervention activities, as well as health screenings.
For more information about on-site facilities, see Chapter 2, Providing Physical Fitness Programs.
Since 1946, the health unit has been the most common site for providing health services to Federal employees. A health unit or occupational health center (OHC) is a convenient place to provide and coordinate comprehensive health services. Providing services at or near the workplace minimizes employees' time away from work and enhances productivity.
Depending on the size and needs of the agency(s) served, your agency may provide full-or part-time health services. Smaller agencies within a building or geographic locality may share space and/or services or have access to a nearby off-site health center.
Coordinate the design and plans for a new OHC in Government owned or leased space with GSA regional offices. Federal Occupational Health can also help review space, supplies, and equipment needs based on your agency's population and services.
Your agency or vendor may manage the ongoing operations of the OHC which may be staffed with contracted health professionals. An occupational health registered nurse is recommended, however, occupational health physicians, physician's assistants, nurse practitioners, licensed practical nurses, and trained technicians may all be appropriate depending on the size, scope, and complexity of the services required.
Consider the OHC when developing any agency employee health program plan. The OHC staff should work in conjunction with your agency's on-site fitness facility, employee assistance counselors, and health and safety professionals. The OHC and its staff can play a pivotal role in the effectiveness and success of your agency's employee health services program.
For Further Information
Call Federal Occupational Health Customer Assistance at 800-457-9808. FOH has published Standards & Criteria for the Development of Comprehensive Occupational Health Programs.
Q: What are Key Elements of a Successful Employee Health Program?
There are many excellent resource books on developing successful employee health programs. Most strategies can apply in general to most worksites. Federal employee health programs have evolved for many years and have unique challenges.
Successful Federal programs have firmly planted roots and have a plan to manage ongoing changes in program needs and management support. Consider these strategies:
For Further Reading
Q: What Kinds of Work and Leave Flexibilities May Agencies Provide to Employees to Participate in Employee Health Programs?
The Federal personnel system gives employees considerable flexibility in scheduling their hours of work and taking time off for routine medical examinations and preventive screenings. Agencies should review policies and make maximum use of existing work schedules to encourage employees to take advantage of preventive health services. The following are some examples of the work and leave flexibilities available to employees:
Alternative Work Schedules
Your agency may establish flexible or compressed work schedules, collectively referred to as "alternative work schedules." Alternative work schedules allow for a variety of working arrangements tailored to individual employee needs.
Most employees accrue 13, 20, or 26 days of annual leave each year, depending on years of service (which accumulates to a maximum of 240 hours each year).
Your agency may grant a limited amount of excused absence to employees to participate in agency sponsored preventive health activities, such as health fairs, mobile health van screenings, and smoking cessation and stress reduction classes.
Most employees accrue 13 days of sick leave each year without regard to length of service. This sick leave accumulates without limit in succeeding years.
Supervisors may advance annual and/or sick leave to employees who do not have available paid leave for health services not directly sponsored by the agency. Supervisors may also advance annual leave to employees for any additional examinations and follow-up treatments.
When an employee needs additional medical attention, e.g., for a serious health condition identified by a screening process, two additional leave programs are available.
The Family and Medical Leave Act of 1993 (FMLA)
Under the FMLA, an employee is entitled to a total of 12 work weeks of unpaid leave during any 12-month period for certain need, including an employee's serious health condition and screenings for such conditions. FMLA leave may be used intermittently and is in addition to other paid time off available to an employee. Employees may substitute sick or annual leave for unpaid leave under the FMLA.
Employees who experience a medical emergency identified through a preventive health screening and who exhaust their available paid leave may receive donated annual leave from other Federal employees through the voluntary leave transfer and leave bank programs. Employees may not use donated annual leave to participate in employee health programs.
Additional information on Federal leave programs may be found at OPM's web site at www.opm.gov/oca/leave/.
Providing Physical Fitness Programs
Q: What is a Physical Fitness Program?
Under 5 U.S.C. §7901, agencies may establish and operate physical fitness programs and facilities designed to promote and maintain employee health. Fitness programs should be designed to improve or maintain an employee's cardiovascular endurance, muscular strength and endurance, flexibility, and body composition.
Fitness programs may include:
Establish and administer physical fitness programs as an integral part of your agency's employee health services program. Your agency may operate on-site fitness facilities or use the services of a private facility. It is possible to offer fitness activities without special facilities.
In addition to providing programs and facilities, your agency may encourage an active lifestyle by issuing policies supporting flexible work schedules and creating environments that encourage active and healthy lifestyles (e.g., providing showers and locker rooms, bike racks, running maps, and healthy vending machine choices).
For Further Reading
In 2002, The Surgeon General's Call to Action to Prevent and Decrease Overweight and Obesity called on all sectors of society, including worksites, to take part in the call to action. The Surgeon General's Report on Physical Activity and Health, July 1996, states that a moderate amount of physical activity on a regular basis can improve health, and asks employers to provide supportive workplace environments and policies that help employees become more physically active. Visit the web site containing a compilation of the Surgeon General's reports at http://sgreports.nlm.nih.gov or call 888-231-6405.
Checklist for Establishing Physical Fitness Programs
Determine the need for and extent of the programs and facilities
Q: Who Pays for Physical Fitness Programs?
Physical fitness programs may be:
The extent to which your agency pays for fitness programs depends on budget, employee needs, and agency mission. Many agencies are exploring ways to share the cost with the employee. For example, many Federal fitness facilities are employee-funded, but agencies typically pay for the rent of space and start-up costs.
Q: How May We Collect Fees from Employees?
Employee contributions may be a significant funding source.
Agencies may collect fees directly from employees under specified conditions, or arrange for fee collection by third parties, such as employee organizations or contractors.
Generally, any fees collected by a Federal agency from its employees must be deposited into miscellaneous receipts of the U.S. Treasury, unless you have statutory authority to do otherwise (31 U.S.C. §3302). Such fees, may not ordinarily be used to directly reimburse the costs of health facilities or programs.
Employee Fees Can Support Program Costs When Collected By a Contractor
Your agency may use the fees collected from employees to directly support program costs in the following situations:
Contractors who provide physical fitness programs may collect employee fees directly or make arrangements with an employee organization to collect fees from employees. Sometimes contractors are willing to split costs between the agency and participating employees. Through the contracting process, the agency and contractor determine the total cost. The agency then pays a predetermined portion. The contractor is responsible for collecting fees from the employees to cover the remaining cost.
When Collected By an Employee Organization
Many Federal fitness facilities are managed by employee organizations (such as a non-profit employee board or a recreation association). The employee organization manages the fitness facility via a contractor or its own staff. The organization charges the employee a membership fee to cover operating costs. Under this arrangement, the agency may collect employee fees through payroll deduction on behalf of the employee organization (5 U.S.C. §5525, Allotment and Assignment of Pay).
When Authorized by Congress
Some agencies, through the appropriations process, request special authority to collect fees directly from employees to cover the costs of their fitness centers.
When Using GSA Space and Services
If your fitness facility is located in GSA space, your agency pays for the use of the space and services such as electricity. Your agency may collect fees directly from employees to reimburse your agency's appropriated fund established for the cost of space and services (40 U.S.C. §490 (k)). Other costs typically associated with physical fitness facilities, such as staff and equipment, are not directly reimbursable under this authority.
The Administrator of the General Services Administration and the Director of the Office of Management and Budget must approve the rates an agency charges its employees. Any fees collected in excess of the actual cost for the space and services must be deposited into miscellaneous receipts of the U.S. Treasury.
Determining Employee Contributions
When determining costs to employees, consider:
Q: May We Grant Excused Absence for Participation in Physical Fitness Activities?
Each department or agency has discretion to excuse employees from their duties without loss of pay or charge to leave. Excused absence should be limited to those situations in which the employee's absence, in the department's or agency's determination, is not specifically prohibited by law and satisfies one or more of the following criteria:
Ultimately, it is the responsibility of each department or agency head to balance support for employees' participation in physical fitness activities with employees' work requirements and efficient and effective agency operations. Your agency should review its internal guidance on excused absence and applicable collective bargaining agreements.
Examples of situations that may warrant short periods of excused absence include participation in officially sponsored and administered physical fitness programs, health education classes, medical screenings, or health fairs.
Consider the following recommendations for establishing employee participation policies:
Make Employees Responsible
The employee may use non-duty time, including lunch periods, when participating in health and fitness activities of long-term duration or that have an indefinite ending date, such as a regular exercise program.
Your agency should encourage supervisors to accommodate, when possible, employee requests for flexible work schedules and annual leave in order to participate in health and fitness activities. Often employees may use the flexibilities of an agency's alternative work schedule program to find convenient non-duty time for this purpose.
Q: May We Provide an On-site Federal Fitness Facility?
Your agency may provide an on-site fitness facility for its employees. The agency fitness facility might offer a variety of services:
There are a variety of options for administering the facility. Your facility may be:
When developing plans for your fitness facility, carefully consider health industry recommendations on staffing, facility design, equipment selection and maintenance, and safety. The American College for Sports Medicine is a good source for written standards and guidelines and several of their resources are referenced in this handbook.
Q: How Do We Staff an On-site Federal Fitness Facility?
The success or failure of a health and fitness program may hinge upon the competence and friendliness of the staff, including having an adequate number of trained staff. Surveys indicate that quality leadership, coupled with a staff that stays current through ongoing training, rank high in terms of continued participation.
Fitness facility staff might include:
Fitness Director/Program Manager
Sample duties of the staff might include the following:
Health Fitness Specialist/Assistant Manager
Q: How Do We Design an On-site Federal Fitness Facility?
Planning a fitness facility requires time, research, and careful attention to detail. Consult Federal, State, or local regulations. Compare your facility design and planned services to the standards outlined in the American College of Sports Medicine's Health/Fitness Facility Standards and Guidelines, Second Edition. Visit other facilities to talk with the staff and members. Your agency might use a fitness facility management company to design the facility or to get expert advice.
The General Services Administration provides or arranges for adequate space and equipment for EAPs, health units, and fitness facilities in Federally owned and leased buildings. Work with appropriate GSA regional offices to conduct employee surveys and to design and build programs and facilities. Your agency is responsible for purchasing the exercise equipment, lockers, and nonstandard interior finishes. See Appendix 5 for other references regarding assignment and utilization of space and how the requirements apply to fitness centers in GSA-controlled space. Also consult GSA's Customer Guide to Real Property, a product of the Public Buildings Service. Search the GSA web site at www.gsa.gov or call 202-501-1100.
A comprehensive facility will include:
Q: How Might An Agency Purchase Equipment for an On-site Federal Fitness Facility?
Your agency may purchase equipment for your fitness facility. Survey employees to determine preferences.
Purchase equipment designed for "club use." The equipment must stand up well to wear and tear and heavy use. There are many well-recognized equipment manufacturers. The exercise equipment industry is rapidly growing, so the "top of the line" equipment may change from year to year. Consult with other Federal facilities or a fitness management company to narrow your choices.
Consider equipment cost. Specifically, request GSA pricing when comparison-shopping. There are other options to paying in full, such as leasing equipment or purchasing used equipment from other facilities listed on Government surplus lists.
Equipment that looks new and functions properly holds its value and is a major factor in keeping members.
Even well built equipment requires attention on a regular basis. Clean and maintain the equipment routinely to reduce the number of repairs and extend the life of the machinery.
Consider using the services of an equipment maintenance company. This is especially convenient for cardiovascular equipment that requires frequent replacements of parts.
Equipment Wish List
Strength Training Equipment for Lower Body Muscles
Free Weight Equipment
Exercise Class Equipment
Individual Mats for Stretching and Toning Exercises
Q: How Do We Reduce the Chances of Injury at Our On-site Federal Fitness Facility?
Despite precautions, accidents can occur. The majority of accidents can be prevented through adequate supervision, staff training, appropriate screening procedures, and proper facility and equipment upkeep.
Your agency must be prepared to respond in a responsible and timely manner. Develop safety policies and a comprehensive emergency plan. Document, post, and practice emergency response procedures.
Use the following important health industry strategies for safe fitness facility operation:
For Further Reading
Q: How May We Use Off-Site Fitness Facilities?
Providing health and fitness activities via a private facility may be part of an agency's bona fide preventive program authorized under 5 U.S.C. §7901.
Agencies, in exercising this authority to purchase access to private health and fitness facilities, should use the following criteria in making the determination:
Consider the following criteria when selecting a particular private health and fitness facility.
Consider the following recommendations for purchasing memberships.
Q: What Are the Liability Risks Associated with Physical Fitness Programs?
While the benefits of providing health and fitness activities outweigh the risks, your agency should be aware of liability issues. Persons sustaining personal injury may bring claims against the U.S. Government under two Federal Statutes: the Federal Employees' Compensation Act (FECA) and the Federal Tort Claims Act.
The Federal Employees' Compensation Act (FECA)
FECA, as amended, 5 U.S.C. §8101 et seq., provides for the payment of workers' compensation benefits to Federal employees sustaining injuries while in the performance of their duties. The Department of Labor has established guidelines defining the scope of FECA's coverage for employees injured while engaging in physical fitness activities.
FECA provides the exclusive remedy against the U.S. Government for Federal employees injured in the course of their employment. If an employee receives payment under FECA, he/she cannot bring suit against the U.S. Government under the Federal Tort Claims Act for death or disability arising out of Federal employment.
Federal Tort Claims Act as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988
This Act provides individuals with an appropriate remedy against the U.S. Government for personal injury caused by the negligent or wrongful acts of Federal employees.
Under this Act a Federal employee can no longer be sued personally for negligent or wrongful acts resulting in personal injury, provided that the employee was acting within the scope of his/her office or employment. Instead, the U.S. Government will represent the employee and serve as the defendant.
However, the Act does not protect the Federal employee if his/her conduct is illegal, in violation of the Constitution, or outside the scope of his/her employment. For these reasons, employees responsible for administering physical fitness programs may want to consider professional liability insurance as a precaution.
Injured parties not covered under the Federal Employees' Compensation Act, who are injured by such conduct of Federal employees, may bring suit against the U.S. Government under this Act.
In some cases, injuries will result in suits by the injured party against non-Federal groups (e.g., contractors, employee organizations that are responsible for providing physical fitness programs, fitness equipment vendors, and private health clubs). When contracting with vendors, agencies should require that the vendor carry general liability insurance.
The Use of Waivers
Use waivers and informed consent forms for participation in agency sponsored fitness facilities or events. The general thought on the use of waivers is that they do not absolve an agency from liability for its negligence, but rather they:
Check with your General Counsel to determine the need for a waiver or other screening forms and to ensure that it conforms to the appropriate State and local laws governing such forms.
Administering Employee Assistance Programs
Q: What is an Employee Assistance Program (EAP)?
At some time in their careers, many employees will experience a problem that will affect a major aspect of their lives. Examples of these are:
The problem might not be the employee's concern; it might be the problem of a family member or a close friend. No matter where the problem originates, these problems can affect an employee's job performance or conduct.
The EAP is a voluntary, work-based program that provides cost-free and confidential assessment, short-term counseling, referral, and follow-up services to employees who have personal and/or work-related problems that may affect attendance, work performance, and/or conduct. Every agency has an EAP which has a goal of restoring valuable employees to full productivity.
Below are definitions for some common EAP terms.
A chronic and progressive disease, characterized by the loss of control over the use of alcohol and/or drugs, that adversely affects a person's physical, mental, emotional, and social capabilities, interpersonal relationships, and/or occupational, and economic functioning.
The excessive use of alcohol or drugs in a manner that may impair a person's physical, mental, emotional, interpersonal, occupational, and economic functioning.
An employee who voluntarily seeks EAP assistance or who seeks EAP assistance at the recommendation of a union representative, co-worker, friend, family member, nurse, etc.
An employee who is formally referred to the EAP by a supervisor, usually as a result of a performance or conduct deficiency, or an employee who is identified as using or abusing drugs in accordance with Executive Order 12564.
An employee who admits to drug abuse to his or her supervisor or to the EAP and seeks rehabilitative assistance from the agency EAP in accordance with Executive Order 12564 prior to being identified through other means.
A clear warning to an employee who has raised alcohol and/or drug use in connection with a specific performance, conduct, or leave use problem. The employee must make a choice between accepting treatment for the alcohol and /or drug problem and improving job performance or facing disciplinary action, up to and including removal.
Last Chance Agreement
An agreement reached between the employee and the employer that holds in abeyance the an employee's disciplinary action, when certain conditions are met.
Emotional/ Behavioral Problems
Problems, such as financial, family, marital issues, etc., that may have an adverse impact on employee performance, conduct, or reliability.
Organizations such as treatment and rehabilitation facilities and programs that exist in the community, such as Alcoholics Anonymous and other self-help groups.
Q: What Are the Legal Requirements for EAPs?
Counseling programs for Federal civilian employees who have substance abuse problems are required by:
Public Law 99-570 (5 U.S.C. §§7361 and 7362), The Federal Employee Substance Abuse Education and Treatment Act of 1986, and title 5 Code of Federal Regulations (CFR) Part 792, requires Federal agencies to establish appropriate prevention, treatment, and rehabilitative programs and services for alcohol and drug abuse problems for Federal civilian employees (see Appendix 1).
Public Laws 96-180 and 96-181 authorize your agency to extend counseling services, to the extent feasible, to family members of employees who have alcohol and drug problems, and to employees with family members who have substance abuse problems.
Public Law 79-658 authorizes the head of agency to establish health services programs for employees, also forms the basis for expanding counseling programs from those dealing solely with substance abuse to broad range programs which provide counseling for other personal problems, e.g., family, financial, marital, etc. (see Appendix 2).
Executive Order 12564 requires your agency to establish a drug-free Federal workplace program, including an EAP as an essential element in achieving a drug-free workforce. Your agency must refer all employees found to use illegal drugs to the EAP for assessment, counseling, and referral for appropriate 'treatment or rehabilitation.
Q: What Are the Agency's Responsibilities?
When establishing an EAP, your agency should:
* Some aspects of employee health and assistance programs are negotiable conditions of employment of bargaining unit employees and, as such, may not be unilaterally established or changed to the extent they apply to bargaining unit employees.
Q: What Services Can an EAP Provide?
In addition to alcohol and drug abuse counseling, your agency may offer counseling and referral services for a variety of problems through the EAPs, such as mental health, emotional, family, financial, elder and dependent care, legal difficulties, etc.
The EAP also plays a key role in educating employees on a variety of health and assistance topics such as HIV/AIDS, money management, parenting, caring for aging parents, stress management, and selecting quality child care.
The basic services of the EAP include:
In addition, the EAP can be extremely important in:
Q: How Are EAPs Administered?
The EAP may be made part of the agency's overall employee health services program. It may be integrated organizationally and functionally to enhance employee awareness and utilization of available services and to efficiently deliver health services to employees.
Your agency might set up an "in-house" program using agency staff, contract for EAP services or use a combination of both options. Contract and in-house EAPs provide the same basic services.
Agency In-House Programs
Staff your in-house program with agency personnel on a full-time, part-time, or collateral-duty basis. Your agency may hire a full-time EAP program administrator, coordinator, and counselors to operate the program.
The majority of the EAPs are operated through contracts or interagency agreements with other organizations. These mechanisms can be cost effective when the programs are tailored to the specific needs of the agency.
Contract arrangements are often used to provide EAP services to employees working in remote locations. Contract arrangements also work in small agency installations where in-house EAPs would not be possible because the agency lacks in-house expertise or because the workforce population is not large enough to justify employing an in-house EAP staff.
In addition, your agency might choose to provide EAP services to your employees through interagency agreements with the Division of Federal Occupational Health (FOH), DHHS. FOH operates many EAPs for Federal agencies throughout the country.
Contracting with outside organizations or providers for EAP services is a viable option for many agencies. Your agency might operate the EAPs either through a single agency contract or as part of a multi-agency contract. Larger agencies use a combination of these options.
Agencies in the same geographical area may determine that the only viable option for having an EAP is to combine their resources in a multi-agency contract. This is called a Cooperative Interagency Employee Assistance Program, or "Consortium."
Typically, this process involves one agency agreeing to become the lead agency for the consortium, signing a contract with an outside organization for the counseling and referral services, then monitoring how the contract is being performed. All of the participating agencies, in return, share the expenses of the contract, usually on a per capita basis, through an interagency agreement. FOH manages most EAPs through this type of arrangement and can act as the lead through an interagency agreement.
The Economy Act, 31 U.S.C. §1535, gives agencies authority to enter into interagency agreements with other Federal agencies.
Q: How Should We Staff the EAP?
Each agency determines its needs for EAP personnel, depending on the program's scope. The following briefly describes the types of activities EAPs perform. In some locations, one individual may perform all these duties.
The EAP administrator is responsible for developing, implementing, and evaluating the agency's EAP. The administrator provides policy guidance and assistance to EAPs in the field on the interpretation of laws and regulations, EAP statistical reports, confidentiality of EAP records, and other technical issues.
Coordinators are responsible for implementing and operating the EAP within an agency component, such as a headquarters office or at a field installation. Your agency may need more than one coordinator depending on the size of the agency component.
EAP counselors serve as the initial point of contact for employees using the EAP. They provide the direct day-to-day services, such as, assessment, short-term counseling, referral and follow-up to help employees readjust to the job during or after treatment.
In addition, EAP counselors often help supervisors and employees cope with traumatic events, such as the death of a co-worker, natural disasteror man-made disasters, or accidents.
Counselors also conduct educational activities on a variety of issues such as substance abuse, stress management, financial management, HIV/AIDS, and balancing work and family responsibilities.
Q: What Types of Qualifications Should EAP Staff Possess?
Your agency should require that in-house program staff or the contract counseling staff possess specific education and training (e.g., Masters degree in Social Work, Psychology, etc.). More specifically, EAP personnel should possess the qualifications, education, and training to be able to:
Q: How Should We Evaluate Our EAP?
Agencies might wish to establish criteria for evaluating their EAP. Here are some common methods to evaluate the visibility and effectiveness of the agency EAP.
Use the results of agency evaluation efforts to make improvements to EAP services. The following are examples of actions an agency might decide to make based on the results of evaluations:
Program Evaluation Checklist
Quality and Scope of Program.
Has the program established goals and objectives?
Has a program coordinator been assigned responsibilities for the agency's program?
Program Evaluation and Results.
What system is used to determine if the goals and objectives were met?
Other Significant Factors.
Does a policy statement exist?
Q: Can the EAP Help with Employee Performance, Conduct, and Leave Difficulties?
The EAP can be a valuable resource for supervisors and employees when personal problems adversely affect an employee's attendance, performance, or conduct. Supervisors should counsel employees with deficiencies in conduct or performance and offer appropriate assistance to prevent more serious problems.
Supervisors are responsible for making employees aware that certain behaviors will result in loss of pay or removal if not effectively addressed:
Supervisors are not expected to be skilled in medical diagnosis. Supervisors should not attempt to diagnose a physical and/or mental condition that may affect an employee's performance or conduct.
Instead, supervisors should be alert to a pattern of deficient or deteriorating performance and/or conduct. Such a pattern may suggest an underlying personal or medical problem. In this case, the supervisor should let the employee know about the services of the EAP for personal counseling or to bring forward medical documentation.
Supervisors should request medical documentation only when they believe, to a reasonable extent and based on objective evidence, that an employee has a medical condition that:
Steps For Supervisors
When supervisors suspect or recognize that the employee's performance or conduct deficiencies are caused or have been affected by substance abuse or other personal problem, the following actions are recommended:
One option in documenting a disciplinary or performance problem includes using a written referral to the EAPs. The supervisor may choose to outline the employee's specific job problems and deficiencies and include an appointment with an EAP counselor at a specified time (arranged with the counselor earlier).
In other situations, a supervisor may opt to give a verbal referral to the EAP, along with discussion about any on-the-job problems or deficiencies that need to be corrected. In that case, they would wait 30 to 60 days and if progress is not made, then written documentation about the job problems may be issued.
Employee participation in an EAP is strictly voluntary and confidential. However, with the employee's written consent, a supervisor may verify whether or not the employee kept the EAP appointment arranged by the supervisor.
If a supervisor knows that an employee has a disability that is affecting the employee's job performance, the supervisor may try to determine whether a reasonable accommodation is available to raise the employee's performance to a satisfactory level. Medical documentation, consistent with 5 CFR 339, may be requested to support an accommodation request. Knowledge that a disability is negatively affecting an employee's ability to perform the essential functions of his or her job justifies a medical exam or inquiry as job-related and consistent with business necessity.
Q: What Should the Supervisor Do When Employees Indicate That Their Problems Stem from Alcoholism?
Take the following steps :
Q: Do We Have to Consider Reasonable Accommodation When Referring Employees to the EAP?
If an employee requests a reasonable accommodation, either orally or in writing, however vague, the agency must exercise due consideration responding to the request. First, refer to the agency's policy on reasonable accommodation (EO 13164 required all agencies to develop their own reasonable accommodation policies). When considering a request for reasonable accommodation, the provisions of the Americans with Disabilities Act of 1990 (ADA) was made applicable to Federal employees through the Rehabilitation Act of 1973, as amended. The discussion below addresses reasonable accommodation when an employee has a substance abuse problem. Another resource that which discusses reasonable accommodation is www.disability.gov. Discussions about providing accommodations for drug and alcohol use may be found under "Employer's Resource."
Illegal Use/Abuse of Drugs
The Americans with Disabilities Act of 1990 (ADA) also amended the Rehabilitation Act of 1973 to exclude from coverage those individuals who currently engage in the illegal use of drugs. Individuals who are erroneously perceived as engaging in illegal drug use, or who are no longer illegally using drugs and are enrolled in or have successfully completed a rehabilitation program, are not excluded from coverage. However, appellate decisions by the EEOC have held that employees who enter a treatment program after engaging in acts of misconduct are not entitled to the protections of the Rehabilitation Act.
Alcohol Abuse or Other Addiction
Special requirements apply when employees raise their abuse of alcohol or prescription drugs as a disabling condition covered by the Rehabilitation Act and ask for some form of reasonable accommodation. These requirements apply in addition to the general recommendations on referral and other uses of the EAP.
The following paragraphs discuss these terms:
Q: When Should We Offer a Firm Choice or Last Chance Agreement?
When an employee's alcoholism is the cause of ongoing or chronic performance, conduct, or leave deficiencies, the supervisor may consider providing a "firm choice" or last chance agreement to the employee. See the example of a last chance agreement in Appendix 7. While your agency is not required to give a firm choice or last chance agreement there may be instances where your agency may wish to utilize this option, rather than proceeding with removal. Some agencies have contractual agreements that require supervisors to provide a firm choice under specific circumstances. Verify your agency's policy by checking the agency's contractual agreements.
With firm choice, the employee is given a choice between:
If the employee agrees to the firm choice, management holds disciplinary action in abeyance pending demonstration of successful rehabilitation efforts.
If the employee does not agree with the recommendation for rehabilitation, prepare a unilateral statement that sets forth the terms of the last chance. Use clear and understandable language, for the agency's and the employee's benefit. If the employee fails to meet the terms set forth, take the planned action to removedisciplinary action.
If your agency merely suspects alcoholism, but the employee has not admitted to a problem, the agency should take appropriate disciplinary or non-disciplinary action, rather than failing to deal with the performance and conduct problems. An offer of assistance should be provided at the same time that management provides the employee with one of the following:
The supervisor should work with the human resources office to determine requirements for acceptable performance, conduct and/or leave usage. The EAP counselor is in the best position to determine the most appropriate treatment programs and monitor the employee's progress in the program.
Q: How Are the Privacy and Confidentiality of EAP Records Protected?
Given the personal nature of visits to the EAP, employees are naturally concerned about the privacy and confidentiality of information maintained by the EAP. Your agency is required to inform employees about the procedures and laws affecting the EAP's system of records. When an employee comes to the EAP for assistance, the EAP staff should provide him or her with a written notice concerning the confidential nature of EAP records along with the conditions where information discussed in counseling may be disclosed.
The Privacy Act (5 U.S.C. 552a) covers all EAP records. In addition, EAP records of clients with alcohol and drug problems are protected further by 42 CFR 2 Part 2, "Confidentiality of Alcohol and Drug Abuse Patient Records."
Depending on the location of the counseling site and the professional background of the EAP counselor, the EAP records may also be protected by state and professional licensing/credentialing laws and regulations. Generally, these laws and regulations prohibit EAP staff from sharing any information about clients to anyone outside of the EAP, without the specific written consent of the client.
For more information, OPM's Confidentiality and the Employee Assistance Program: A Question and Answer Guide for Federal Employees, is available on the OPM web site at www.opm.gov/ehs/confibro.htm.
Q: When Can Information About an Employee's Participation in the EAP Be Disclosed?
Disclosure With Consent
Obtain the employee's written consent before releasing any information, except where disclosure without the consent of the client is allowed (refer to the text in the following question). This applies to all releases, including those to supervisors, treatment facilities, and family members, without regard to the type of problem(s) the individual is experiencing. See Appendix 8 for a recommended consent form that contains all the elements required by current confidentiality regulations.
Disclosure Without Consent
Disclosure without consent is only permissible in a few specific instances, such as:
If requested, the EAP may confirm attendance at the program to a direct supervisor, if the employee attended while on official duty status or on sick leave. The EAP may also communicate with a qualified organization (such as a contractor) providing services to the program. The exchange is limited to the information needed by the organization to provide the required services.
Additionally, the EAP is required by law to report incidents of suspected child abuse and neglect (in some states, elder and spouse abuse) to the appropriate state and local authorities. These disclosures are limited to information about the abuse. Other information maintained in the EAP record can only be released according to the procedures outlined above.
Finally, the EAPyou may make a disclosure to appropriate persons, such as law enforcement authorities and those persons being threatened, if the client has committed, or threatens to commit, a crime that would physically harm someone. This can only be done only if the disclosure does not identify the EAP client as an alcoholic or drug abuser.
The only exception to the above restriction is that, if such a crime takes place at the EAP, the EAP can reveal only to law enforcement officers that a client is an alcoholic or drug abuser, as long as the information disclosed under this exception is limited to the circumstances of the incident. Any other disclosure about the client may require a court order.
Any information disclosed with the employee's consent must be accompanied by a statement that prohibits further disclosure unless the consent expressly permits further disclosures.
Q: Who Has Access to EAP Records?
Only those individuals working directly with the program's clients have access to EAP client records. Additionally, agency EAP Administrators/Coordinators, whether they work directly with clients or oversee EAP contract staff, may have access to the records for the purposes of:
Clients of the EAP also have the right to access their own EAP records. If they wish to obtain complete copies or other information that may be contained in their EAP records, they may do so by making a written request to their agency EAP staff. If third parties are making the requests, written consent forms signed by the clients must accompany the requests. The EAP staff should always keep the original records.
Q: Who Owns the EAP Records?
All EAP records are the property of the Federal department or agency sponsoring the program. These records include any records created and maintained by contractors.
Contractors are custodians of EAP records while under contract to the agency or department. Contractors should return the original records to the appropriate persons at the termination of the contract. It is very important that contracts for EAP services contain specific language to the effect that:
Q: How Should We Maintain EAP Records?
To the extent possible, do not include identifying information in case files. While some identifying information may need to be entered in the files (e.g., consents for release of information), keep these to a minimum. Only enter information necessary for handling the case and do not make the EAP file contents part of, or stored with, employees' Official Personnel Folders or employee medical files.
Maintain information on family members of employees who use the services of the EAP in the files of the employees. The only exception to this requirement is when family members are clients of the EAP because of a substance abuse problem.
Security of Files
Keep all case files in locked metal filing cabinets, preferably those equipped with combination padlocks and steel lock bars. Store cabinets in a secure area and lock the cabinets when not in use. Do not store records of other agency programs in these cabinets.
Electronic Record Keeping
Take the same confidentiality safeguards for records stored electronically. Protect EAP data systems from entry by anyone outside the EAP. Use non-networked EAP computers or passwords.
Period of Maintenance
Retain each record for three years after the employee has ceased contact with the EAP, whether or not the employee has terminated employment with the agency. Keep records longer if required by the Sstate where the records are kept, or until any litigation involving the employee is resolved. When applicable, contract staff may retain records past this period, for as long as any relevant state statutes of limitation require.
Destroy files only after the required period of maintenance. Only the EAP Administrator or coordinator should destroy files. Have at least one witness present when files are destroyed or electronic deletions made. The witness should be an agency employee familiar with handling confidential records. Whenever possible, have other EAP staff members be witnesses.
Add the names of employees whose records were destroyed to agency records of former EAP participants. Keep lists in accordance with the same confidentiality procedures that apply to other EAP records. Do not maintain information about clients once their files have been destroyed.
Destroy written files or records by shredding or burning. Destroy electronic records by deleting all portions of hard drives, floppy discs, tapes, and other electronic media that may contain the record. Degauss computers that leave the possession of the EAP.
Q: Should Employees be Charged Leave When They Go to the EAP?
Your agency may grant periods of excused absence to an employee for participation in the agency's EAP for problem identification and referral to an outside resource. This might take as many as five or six visits with the counselor.
In addition, your agency may grant excused absence for general employee orientation or education activities (e.g., program briefings, general orientations, seminars, etc.).
During any period(s) of treatment and rehabilitation through an outside resource, consider the use of annual or sick leave or leave without pay.