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Encourage, don’t require, EAP counseling

by on
in Employee Benefits Program,Employment Law,HR Management,Human Resources

Q. When we discipline employees for behavioral issues, we typically tell them to meet with an employee assistance program (EAP) counselor. Can we require them to have at least one session, or does that violate the ADA? —J.M., Idaho

A. You cannot force an employee to obtain counseling or therapy in routine disciplinary matters. Such a requirement violates the ADA and creates employee relations issues. However, you can always inform employees of the availability of your EAP and the services available, and generally encourage use of the EAP. And you can certainly require that employees maintain certain standards of behavior and performance on the job.

In rare instances, the ADA does permit you to require, as a condition of continued employment, that an employee be examined by a physician or mental health professional. That exception is limited to situations in which your organization reasonably believes, based on objective evidence, that the employee has a medical condition that impairs his or her ability to perform essential job functions, or the employee poses a direct threat to his or her safety or the safety of co-workers.

Before requesting such an examination, consult with your attorney. The improper use of this exception can result in significant ADA liability, and possibly violate other laws.

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Editor's note: To access more reader Q&As--which are answered by employment lawyers in the HR Specialist Employment Lawyer Network--vist the Q&A section under our Tools tab.

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