Employee Health Services Handbook

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Chapter 3

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:

• Alcoholism
• Drug abuse
• Divorce
• The death of a loved one
• Bankruptcy
• Some other family or workplace crisis.

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.

Alcoholism/Drug Addiction

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.

Alcohol/Drug Abuse

The excessive use of alcohol or drugs in a manner that may impair a person's physical, mental, emotional, interpersonal, occupational, and economic functioning.

Self-Initiated Referral

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.

Management-Initiated Referral

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.

Self-Identification

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.

Firm Choice

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.

Community Resources

Organizations such as treatment and rehabilitation facilities and programs that exist in the community, such as Alcoholics Anonymous and other self-help groups.

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Q: What Are the Legal Requirements for EAPs?

Counseling programs for Federal civilian employees who have substance abuse problems are required by:

• Sec. 201 of Public Law 91-616, 84 Stat. 1849, as amended and transferred to Sec. 520 of the Public Health Services Act by Sec. 2(b)(13) of Public Law 98-24 (42 U.S.C. §290dd-1),
• Sec. 413 of Public Law 92-255, 88 Stat. 84, as amended and transferred to Sec. 525 of the Public Health Services Act by Sec. 2(b)(16)(a) of Public Law 96-24 (42 U.S.C. §290ee-1), and Sec. 7361 and Sec. 7362 of Public Law 99-570.

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.

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.

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:

• Provide top management support and endorsement for EAPs
• Develop agency policy on EAP goals and training
• Establish a statement of goals and objectives
• Determine the extent of services to provide through the EAP and the administrative options
• Identify available community resources
• Select qualified personnel
• Negotiate or consult with unions, as appropriate to provide EAP services to bargaining unit employees*
• Publicize the EAP through internal memos, newsletters, posters, etc.
• Encourage employees to use the EAP by making services convenient and available to employees
• Develop an ongoing evaluation process

* 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.

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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:

• Confidential, free, short-term counseling to identify and assess problem(s) and to help employees in problem solving.
• Referral, where appropriate, to a community service or professional resource that provides treatment and/or rehabilitation. With the exception of illness or injury directly resulting from employment, medical care and treatment are personal to the employee and, therefore, payment may not be made from appropriated funds unless provided for in a contract of employment or by statute or by regulation.
• Follow-up services to help an employee readjust to his or her job during and after treatment, e.g., back-to-work conferences.
• Training sessions for managers and supervisors on handling work-related problems that may be related to substance abuse or other personal, and/or health-related problems.
• Orientation and educational programs to promote the services of the EAP.
• Briefings to educate management and union officials on the role of EAPs.

In addition, the EAP can be extremely important in:

• Preventing and intervening in workplace violence incidents
• Delivering critical incident stress debriefings
• Providing assistance to management and employees during agency restructuring.

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.

Contract Programs

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.

Cooperative Programs

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.

Related Guidance

The Economy Act, 31 U.S.C. §1535, gives agencies authority to enter into interagency agreements with other Federal agencies.

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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.

EAP Administrator

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.

EAP Coordinator

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 Counselor

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:

• Implement the agency's EAP policy and program effectively, including programs for counseling and assisting employees with alcohol and drug abuse problems
• Interpret and apply the laws, regulations, and procedures that govern Federal EAPs and related programs and services
• Determine and provide appropriate training to supervisors, employees, and union officials, as well as other activities needed to educate and inform the workforce about drugs and alcohol and the dangers of substance abuse
• Develop and maintain counseling, referral, and follow-up capability
• Evaluate the effectiveness of the EAP program and report the findings to management
• Counsel and communicate effectively with employees, supervisors, and managers concerning substance abuse, its symptoms and consequences
• Identify and maintain liaison with community resources for treatment and rehabilitation of substance abusers
• Understand drug and alcohol treatment and rehabilitation insurance coverage available to employees through the Federal Employees Health Benefits Program (FEHBP)
• Distinguish the occasional user from the addicted user and suggesting the appropriate treatment based on that information
• Help employees maintain abstinence from future substance abuse.

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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 steering committees to monitor whether the EAP is meeting written objectives
• Use supervisory and employee questionnaires and interviews to assess utilization, program availability and accessibility, satisfaction with program services, and overall program effectiveness
• Review employee attendance records, accident records, disciplinary and performance based actions, number and type of grievances, etc., to assess program outcomes
• Conduct peer panel reviews of EAP service quality
• Conduct a limited limited cost benefit analysis
• Conduct personnel management system reviews that cover EAP services.

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:

• Improve or increase supervisory/management training
• Increase informal EAP sponsored sessions (e.g., "brown bag" lunch sessions) on special topics, such as "parenting," "elder care," and "HIV/AIDS," for employees
• Increase efforts to publicize and promote EAP services to agency employees
• Increase efforts to improve linkages between the EAP and various parts of the organization, such as the health unit, the safety office, employee and labor relations office, and the union
• Intensify efforts to improve the levels of privacy and confidentiality associated with EAP services
• Automate data and reports
• Monitor contract EAP personnel more closely

Program Evaluation Checklist

Quality and Scope of Program.

Has the program established goals and objectives?
Is the program broad enough in scope to meet a variety of employee needs?
To what degree are employees, managers, and labor organizations involved?
Does the program have adequate budget/resources to offer substantive program activities?

Program Administration.

Has a program coordinator been assigned responsibilities for the agency's program?
What are the qualifications of the program staff?
Are records and patient's files kept in accordance with the confidentiality requirements of applicable laws and regulations?

Program Evaluation and Results.

What system is used to determine if the goals and objectives were met?
Are data collected on such key indicators as number of new cases seen by the EAP staff, the percentage of those employees who were helped as a result of the assistance provided by the program, use of leave, etc.?

Other Significant Factors.

Does a policy statement exist?
Are the services of the EAP well publicized?
Are managers and supervisors briefed regularly on the program?
Do employee orientations contain information on program services?

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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:

• Deficient job performance
• Misconduct
• Leave deficiencies

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:

• Impairs his or her ability to perform the essential functions of his or her job or
• Causes the employee to pose a direct threat to the health or safety of the employee or others.

Steps For Supervisors

• Identify and document instances of less than fully successful performance, misconduct, or attendance problems.
• Obtain advice and assistance from the personnel office and/or EAP staff.
• Inform the employee of the free and confidential services provided by the EAP; and refer him or her to the EAP.
• Consider carefully the employee's request for annual leave, sick leave, and leave without pay, changes in work schedule, and/or other means of resolving his/her job problem(s).
• If an employee requests a reasonable accommodation, however vague, the agency must exercise the considerations recommended in providing a reasonable accommodation (check agency policy) as long as the employee is otherwise qualified.
• Provide the employee with positive feedback and encouragement when progress is made toward satisfactory performance, conduct, and/or leave use.

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Q: How Should Supervisors Deal with Employees Who Have Problems that Impact the Job?

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:

1. Identify and document instances of less than fully successful performance, conduct, or attendance. Notify the employee and take appropriate action as needed.
2. Obtain advice and assistance, as appropriate, from the human resource personnel office or EAP staff about dealing with the employee's problem.
3. Inform employees of the free and confidential services provided by the EAP. When employees have indicated that a problem external to the office is causing the deficiency, refer them to the EAP.

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.

4. Carefully consider any request for annual leave, sick leave, and leave without pay, changes in work schedule, or other means of resolving the job problem(s).

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.

5. Provide positive feedback and encouragement when the employee makes progress toward satisfactory performance, conduct, or leave use. Work with the EAP administrator, coordinator, or counselor, as appropriate, to create a supportive work environment.

Q: What Should the Supervisor Do When Employees Indicate That Their Problems Stem from Alcoholism?

When:

• Employees demonstrate that they are disabled by alcoholism and otherwise qualified for their positions
• The disability has caused the performance, conduct, or leave deficiencies
• The employee has asked for reasonable accommodation.

Take the following steps :

1. Refer the employee to the agency's EAP for counseling and assistance.
2. Offer an opportunity for the employee to undergo counseling and treatment.
3. Provide a firm choice or last chance agreement.
4. For additional guidance, refer to OPM's "Alcoholism in the Workplace: A Handbook for Supervisors."

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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 DisabilityInfo.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:

1. An employee with a disability, as defined in title 29 USC 705 (20) (B)CFR §1614.203(a), has an impairment that substantially limits one or more major life activities, such as working. Examples of other major life activities include:
   
   
   • Caring for one's self
   • Performing manual tasks
   • Walking
   • Seeing
   • Hearing
   • Speaking
   • Breathing
   • Interacting with others
   • Learning.
     
     

An alcoholic, for example, may not be substantially limited in working, but may be substantially limited in performing another major life activity, such as interacting with others. Occasional alcohol abuse, without an addiction to alcohol, is not likely to substantially limit an individual's ability to work. Thus he or she would not be considered "disabled."

2. Your agency is only required to accommodate only the known physical or mental limitations of an otherwise qualified individual. Therefore, EEOC's guidance and case law require an employee to make the agency aware of these limitations by more than simple statements of a problem with alcohol.

Your agency may require the employee to supply acceptable documentation of his or her alcohol addiction either from a physician or expert in the field of alcoholism (such as an EAP counselor). Statements from a physician or an addiction expert unsupported by other evidence are ordinarily insufficient to show the existence of a disabling condition.

3. Employees who are disabled by alcoholism must also show that they are otherwise qualified for their positions. This means that, with or without reasonable accommodation, they can perform the essential functions of their positions without endangering the health and safety of themselves or others. The employee does not meet the test of being a "qualified" individual if:
   
   
   • Performance or conduct deficiencies would impose an undue safety or security risk or operational burden on your agency or
   • If the deficiencies are so egregious, harmful, or detrimental to your agency's mission that they render the employee unfit for employment.
4. Under EEOC's guidance as well as third party case law, employees must show the causal connection, or nexus, between their disabling condition and the performance, conduct, or leave problems that which prompted them to request a reasonable accommodation.

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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. 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:

• Either following and completing a recommended rehabilitation program and maintaining acceptable performance, conduct, and leave use
• Or otherwise experiencing the consequences of unacceptable performance, conduct, or leave use, up to and including removal.

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:

• Notices of unacceptable performance
• Counseling or warning letters
• Leave restrictions memoranda
• Letters imposing lesser discipline such as a reprimand
• Notices of suspension, demotion or removal

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 website.

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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.

Disclosure Without Consent

Disclosure without consent is only permissible in a few specific instances, such as:

• To medical personnel in a medical emergency
• In response to an order of a court of competent jurisdiction
• To comply with Executive Order 12564, "Drug Free Federal Workplace."

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.

Secondary Disclosure

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:

• Program oversight, evaluation, and quality assurance
• Destroying EAP records at the end of their period of maintenance
• Transferring EAP records from one contractor to another.

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.

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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:

• All EAP records created and maintained by the contractor are the property of the agency entering into the contract
• The contractor must return these records to the agency's EAP staff at the termination of the contract.

Q: How Should We Maintain EAP Records?

File Contents

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.

File Destruction

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.

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