CIM Section 35.2

Due to changes in the Employee and Labor Relations Manual (ELM), Section 942.221, Management Referrals, now provides that management may refer an employee to EAP using the EAP referral form if the supervisor or manager observes such characteristics as listed in Section 942.21or has some other reason to believe that the EAP could provide needed assistance to the employee. The employee, however, has the option to refuse the referral, and he/she cannot be disciplined for refusing the referral.

Employees also may be referred to EAP by other employees, union representatives, management association representatives, medical personnel, family members, or judicial or social service agencies. Employees are also encouraged to seek assistance on their own.

Question: Are there exceptions to the employee’s option to refuse a management referral to EAP?

Answer: Yes. In instances when there is a Last Chance Agreement, or when the employee has signed a settlement agreement agreeing to participate in the EAP, the employee can be disciplined for noncompliance with the terms of the signed agreement.

Source: ELM Chapter 9, Section 942.221

Question: Is the first visit to EAP on the clock?

Answer: An employee’s first visit to EAP is on the clock, whether the visit is initiated by management, the union representative, or the employee concerned, unless the employee prefers to visit the EAP unit on his or her time. Subsequent consultations are on the employee’s own time.

Source: ELM Chapter 9, Section 941.35

Question: What types of leave will be considered if an employee participates in an inpatient treatment program?

Answer: In cases in which hospitalization or detoxification is recommended, requests for sick leave, leave without pay, annual leave, or advanced sick leave are the responsibility of the employee and will be given careful consideration by management.

Source: ELM Chapter 9, Section 942.32

Question: Is there confidentiality associated with EAP?

Answer: Confidentiality is the cornerstone of EAP counseling. EAP counselors are bound by very strict codes of ethics, as well as federal and state laws, requiring that information learned from counseled employees remains private. EAP counselors have licenses and master’s degrees in their fields of expertise.

Management officials and union officials have no right to breach the confidentiality of EAP counseling sessions. What an EAP counselor learns in confidential counseling or other treatment of an employee may be released only with the employee’s completely voluntary, written consent, or upon the order of a court of law. Information regarding participation in EAP counseling is confidential pursuant to the provisions of ELM 944.4. Due to the importance of this subject, Section 944.4 is reprinted hereunder in its entirety.

Source: ELM Chapter 9, Section 944.4.

944 Disclosure

944.41 General

944.411 Usual Recipients

Information identifying substance abuse program participants, whether or not such information is recorded, may be disclosed as follows:

1. To medical personnel outside the Postal Service to the extent necessary to meet a bona fide medical emergency involving the EAP participant.
2. To qualified personnel, with the written authorization of the vice president of Employee Resource Management, for purposes of conducting scientific research or program audits or evaluation. However, under no circumstances may any personally identifiable information be disclosed in the resulting evaluation, research, or audit reports
3. To a court, under the following circumstances:
1. When authorized by a court order upon showing of good cause, such as when necessary to protect against an existing threat to life or of bodily injury, or in connection with the investigation or prosecution of a crime.
2. In litigation or an administrative proceeding when authorized by the trier of fact, when the EAP participant offers testimony or other evidence pertaining to the content of his or her EAP participation. Counsel should be contacted for assistance in both evaluating the order and in determining the extent to which information must be released.
4. To any person when the EAP participant gives prior written consent to disclose information. This consent specifies the nature and scope of the topics to be released, to whom information is to be released, the purpose of the disclosure, and the date on which the consent terminates.
5. To a person in any situation in which the EAP counselor has a duty to warn.
6. To an expert, consultant, or other individual who is under contract to the Postal Service to fulfill an agency function, but only to the extent necessary to fulfill that function, and in accordance with the Privacy Act restrictions as listed under 39 CFR 266.6.

944.412 Limitation of Disclosure

In all cases cited in 944.411, only information that is absolutely necessary to satisfy the recipient’s business or medical need is to be disclosed.

944.42 Criminal Activity

944.421 EAP Records

EAP counseling records or personnel may not be used to initiate or substantiate any criminal charges against an EAP participant or to conduct any investigation of a participant, except as authorized by a court order for good cause.

944.422 Limitation of Confidentiality

If an employee who is an EAP counseling participant reveals the commission or intended commission of serious criminal activity, the EAP counselor is not prohibited from disclosing that information so long as the employee is not identified as an

EAP counseling program participant. Confidentiality does not apply in any of the following cases:

1. A crime is committed on EAP premises or against EAP counselor personnel or a threat to commit such a crime is made.
2. Incidents occur in which information must be reported as required by state law; for example, mandatory reporting of child abuse and/or neglect (elder abuse in some states).
3. For a disclosure that may be required by elements of the criminal justice system because they have referred employees who are EAP participants.