The New York Times article, “You’re the Problem: When they Spoke Up About Misconduct, They Were Offered Mental Health Services,” published on July 28, described an employee at Google who was moved to a new team after she became pregnant and, after reporting discrimination to human resources, being offered 10 free sessions with an Employee Assistance counselor who was contracted by the company and available on campus. A year later, when the employee filed a pregnancy discrimination session, the counselor informed the employee that she was “really nervous and uncomfortable” seeing her after the company had asked for access to records of their sessions. The employee now felt like she was being dumped by her counselor and was concerned with the employer’s access to her records.
The article raised three questions for us.
First, should you recommend that an employee who is reporting feeling uncomfortable seek EAP services? The answer is yes, as long as you: 1) legitimately believe it may provide assistance to them, and 2) still investigate any allegation of discrimination, harassment, or retaliation. EAP is not a means around doing a legitimate investigation. While it may help the employee who feels they are being treated wrongly, you still must investigate the underlying allegation.
Second, if you do refer an employee to your company EAP, don’t characterize how you view the referral. EAP is available to help employees for whatever help they may need. Don’t characterize the referral as one for emotional distress, a mental health issue, substance abuse or anything else. Just make the referral.
Finally, should an employer, who recommends their employee receive EAP services, have access to those records, without the employee’s knowledge? The answer is no. In Minnesota, the employer could not obtain access without “prior written authorization of the person receiving services, or the person’s legal representative.” Minn. Stat. § 181.980, subd. 5. There are exceptions, of course, including “pursuant to a state or federal law or judicial order,” and “if necessary to prevent physical harm or commission of a crime,” but the general rule is that the employee must consent. So if an employee accepts an employer’s recommendation to receive EAP services, the employer will not have access to those records without written consent from the employee. If the employee sues the employer for discrimination, the employer would then likely gain access to those records, but it would not happen without the employee’s knowledge.
Bottom Line
If you legitimately believe EAP will be of assistance to an employee, please continue to refer them. And, you must continue to perform investigations of any allegation of discrimination/harassment/retaliation, regardless of whether or not the employee accepts the EAP referral.