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Employee Assistance Program Triggers Litigation


November 2, 2010

Employee Assistance Programs ("EAPs") are common among employers.  These programs are designed to assist employees with personal issues arising within or outside the office, that may affect their work performance and productivity.  The use of EAP, however, can impact litigation.  

Recently, the United States District Court for the Eastern District of Pennsylvania highlighted the significance of EAPs as they relate to claims under the Americans with Disabilities Act ("ADA").  In Hobson v. St. Luke's Hospital, the plaintiff, a paramedic, sued his former employer for, among other things, discrimination under the ADA.  The plaintiff had repeatedly made advances toward a co-worker, who then complained to her supervisor.  During the course of the investigation, the supervisor commented to the plaintiff that he was "obsessed" with the co-worker and had a mental disability.  The supervisor then recommended that the plaintiff seek counseling through the company's EAP.  Ultimately, the plaintiff was terminated.  

The plaintiff sued and alleged, among other things, that he had been discriminated against based on a perceived disability in violation of the ADA.  His perceived disability claim was based in large part on the supervisor's recommendation that he seek counseling through the EAP.  The plaintiff argued that the fact of the recommendation showed that he was "regarded as" being disabled by his employer.  The Court, however, disagreed.  

An employee is "disabled" and, thus, covered by the ADA's protection if he is "regarded as" having a physical impairment that substantially limits one or more major life activities - - here, the major life activity was working.  The Court found that the supervisor had merely expressed concern about the plaintiff's mental health when it was suggested that the plaintiff seek counseling through the EAP.  The Court found support for its conclusion in recent case law holding that an employee is not "regarded as" being disabled simply because the employer requires a pre-return health evaluation prior to the employee returning to work after being out for medical leave.   

This decision is significant due to the prevalence of EAPs in many employers.  Indeed, employers frequently recommend that employees seek assistance for their personal issues through an EAP in an effort to handle workplace issues.   

This decision provides some measure of comfort to employers who utilize EAP referrals to deal with problem employees.  However, it also provides a cautionary note:  make referrals, but supervisors or any employer representatives, should not share their opinions or thoughts regarding the employee's state of mind or condition - it might just be Exhibit "A" in a disability discrimination claim.