HR Practice Pointer: What Is An “EAP”?
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- Published on Thursday, 25 August 2011 15:47
Employee Assistance Plans (EAPs) are programs offered by many employers to help employees and their dependants deal with certain types of problems that may adversely affect their work performance such as substance abuse, emotional distress or family/personal relationship issues. An EAP is usually offered as part of the employee’s benefits package and often is a part of the group health insurance plan. The EAP may include services for an initial assessment and short-term counseling. The services are usually free to the employee and typically consist of between 3 and 10 sessions. Often an employer will contract with a third party to manage the EAP. Employers must be careful to maintain the employee’s privacy if the need for an EAP arises. Employers may require mandatory referrals to the EAP when an employment issue arises that may be resolved through the EAP, such as a situation in which an employee is under the influence on the job. In general, EAPs are not regulated by state or federal law. However, in California, behavioral therapy providers are required to have a Knox-Keene license offered through the California Department of Managed Health Care. The license is issued pursuant to Section 1353 of the Knox-Keene Health Care Service Plan Act of 1975, as amended. This license ensures that certain minimum standards are met and gives the behavioral therapists the right to conduct business in the state of California. Employers must also comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) when administering an EAP program. HIPAA protects the confidentiality of personal health information, including information obtained through an EAP. Thus, EAP providers and employers cannot disclose any personal health information, including who has used EAP services, without the employee’s consent. The terms and conditions of an employer’s EAP program should be set forth in the employee handbook.
9th Circuit Upholds Employer's One-Strike Rule In Drug Testing Case
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- Published on Thursday, 03 March 2011 06:50
Santiago Lopez wanted to be a longshoreman. In 1997, he applied at the port in Long Beach. However, at that time he suffered from an addiction to drugs and alcohol. Pacific Maritime Association enforces the policies that govern the hiring of longshore workers who work along the West Coast. One of the policies is a "one-strike rule" which eliminates from consideration any applicant who tests positive for drug or alcohol use during the pre-employment screening process. Pacific Maritime Association notifies job applicants at least seven days in advance of administering the drug test. Failing the drug test, even once, disqualifies an applicant permanently from future employment. When Lopez took the drug test he tested positive for marijuana and was thus permanently disqualified for employment under the "one-strike rule." In late 2002, Lopez rehabilitated and then in 2004, reapplied for a longshore worker position. However, because of the "one-strike rule" his application was denied. Lopez then filed suit claiming that Pacific Maritime Association violated both the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA) by discriminating against him on the basis of his protected status as a rehabilitated drug addict. The lower court found for Pacific Maritime Association and Lopez appealed. On appeal, the 9th Circuit affirmed the decision. In holding that Lopez failed to establish intentional discrimination, the Court observed that "We recognize that the one-strike rule imposes a harsh penalty on applicants who test positive for drug useBut unreasonable rules do not necessarily violate the ADA or the FEHA."...
U.S. Supreme Court Upholds NASA's Background Checks of Contract Employees
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- Published on Friday, 21 January 2011 05:45
The U.S. Supreme Court has held that the National Aeronautics and Space Administration's (NASA) background checks of their contract employees do not violate the employee's right to privacy. NASA has a workforce of both federal civil servants and Government contract employees. A group of contract employees at NASA's Jet Propulsion Laboratory (JPL), filed a lawsuit alleging that the background checks which they were subjected to violated their constitutional right to privacy. Specifically, they objected to two questions. The first was "SF-85" which asks whether an employee has "used, possessed, supplied, or manufactured illegal drugs" in the last year. If so, the employee must provide details, including information about "treatment or counseling received." The second was "Form 42" which asks open-ended questions about whether the individual has "any reason to question" the employee's "honesty or trustworthiness," or whether the individual has "adverse information" concerning a variety of other matters. The District Court declined to issue a preliminary injunction, but the Ninth Circuit reversed. It held that SF-85's inquiries into recent drug involvement furthered the Government's interest in combating illegal-drug use, but that the drug "treatment or counseling" question furthered no legitimate interest and was thus likely to be held unconstitutional. It also held that Form 42's open-ended questions were not narrowly tailored to meet the Government's interests in verifying contractors' identities and ensuring JPL's security, and thus also likely violated respondents' informational-privacy rights. The U.S. Supreme Court reversed holding that "the forms are reasonable in light of the Government interests at stake." The Court also observed that "The questions respondents challenge are part of a standard background check of the sort used by millions of private employers."...
Drug Testing Poses Quandary For Employers
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- Published on Monday, 25 October 2010 14:53
According to an article in the New York Times, "Setting rules about prescription drug use in the workplace is tricky, not least because it is difficult to prove impairment. Under [one employer's] policy, a prescription drug was considered unsafe if its label included a warning against driving or operating machinery, but doctors say many users function normally despite such warnings. Also, some employers find it difficult to deal with the problem partly for fear of violating the Americans with Disabilities Act. It prohibits asking employees about prescription drugs unless workers are seen acting in a way that compromises safety or suggests they cannot perform their job for medical reasons, according to lawyers with the Equal Employment Opportunity Commission."...
