EAP hotline calls may trigger ADA, FMLA awareness

Many employers offer employee assistance programs (EAPs) to help employees with personal problems. But be aware that if you communicate directly with counselors who take employees’ calls, you may trigger legal liabilities under both the ADA and the FMLA. That’s especially true if an EAP counselor suggests that the employee needs time off or some other accommodation.

Why is this important? Because if your organization doesn’t know about an employee’s disability, you’re under no obligation to accommodate it. But once you become aware of the disability and the employee’s request for assistance, you’re required to work with the employee to find an accommodation.

Recent case: Leonard Johnson, a technology consultant, was near the World Trade Center during the Sept. 11 attacks. He later told his supervisor "there’s something wrong with me," but he didn’t miss work.

Finally, Johnson called the company’s confidential crisis hotline to talk and obtain a counseling referral. Eventually, counselors diagnosed him with post-traumatic stress disorder.

Later on, the company laid Johnson off. He sued, alleging that his employer should have known about his disability and that he needed FMLA leave.

The court sided with the employer, saying that "Johnson neither notified the company of his disability nor requested leave." However, the court did say that employers who know about crisis-hotline calls may have obligations to follow up under the ADA and FMLA. (Johnson v. Thru Point, No. 04-3386, 3rd Cir., 2005)

Final tip: For this reason, it may be wise to adopt a strict "no contact" rule between HR and the employee assistance program‘s counselors.