Under Washington State laws, what are prohibited acts with respect to an employee’s participation or nonparticipation in employee assistance programs? Here’s my point of view.
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EMPLOYEE ASSISTANCE PROGRAMS (EAPs)
In Washington State, “[a]n employee assistance program (EAP) helps employees and sometimes family members address work and life concerns.” Washington State Health Care Authority Website, Employee Assistance Program (EAP) (last visited 1/11/23). “EAPs are usually free and confidential programs designed to promote health, safety, and well-being[ ][;] [t]hey often support a wide range of issues such as depression, stress, addictions, anger, parenting, relationships, and grief and loss.” Id.
THE EAP CONFIDENTIALITY PROVISION
Washington State law contains a confidentiality provision with respect to an employee’s participation or nonparticipation in an EAP. Namely: “It is unlawful for an employer to obtain individually identifiable information regarding an employee’s participation in an employee assistance program. Individually identifiable information gathered in the process of conducting an employee assistance program must be kept confidential.” RCW 49.44.220 (hereinafter, “EAP confidentiality provision”).
EXCEPTIONS
There are exceptions to the EAP confidentiality provision. “Individual employees’ participation in the employee assistance program and all individually identifiable information gathered in the process of conducting the program shall be held in strict confidence; except that agency management may be provided with the following information about employees referred by that agency management due to poor job performance:
(1) Whether or not the referred employee made an appointment;
(2) The date and time the employee arrived and departed;
(3) Whether the employee agreed to follow the advice of counselors; and
(4) Whether further appointments were scheduled.
RCW 41.04.730 (emphasis added). The EAP confidentiality provision is also inapplicable to the following disclosures:
(1) Disclosures to an employer regarding an employee’s attendance in an employee assistance program, which the employee was required to attend as a condition of continued employment; and
(2) Disclosures that are made to prevent or lessen a perceived threat to the health or safety of an individual or the public; or disclosures that are permitted or required under RCW 18.225.105, 70.02.050, or 71.05.120.
See RCW 49.44.220(1)(b).
EMPLOYMENT RIGHTS
Lastly, the law provides that “[a]n employee’s participation or nonparticipation in an employee assistance program must not be a factor in a decision affecting an employee’s job security, promotional opportunities, corrective or disciplinary action, or other employment rights.” RCW 49.44.220(2).
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