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### Resources For

          - New / Prospective Employees
          - Federal Employees
          - HR Professionals
          - Managers

# Legislation

Several legislative initiatives have shaped guidance and implementation of Employee Assistance Programs in the Federal Government. The Office of Personnel Management is charged through these legislative initiatives to provide overall guidance to Federal agencies, creating baseline expectations for agency programs and helping agencies implement those programs as effectively as possible.

## Guide to Administering Employee Assistance Programs

The Employee Health Services Handbook's Chapter on Administering Employee Assistance Programs, written in collaboration with the Department of Health & Human Services, offers policy guidance to assist agency management and program administrators in implementing successful Employee Assistance Programs.

## Employee Wellness Programs (EWPs): A Guide for Agency Leaders

The Employee Wellness Programs (EWPs): A Guide for Agency Leaders establishes parameters for Employee Wellness Programs and provides agency leaders with resources for themselves, as well as resources to share with their coordinators and supervisors, and employees, and to equip agency leaders with the information needed to ensure their employees are aware of and have access to the appropriate resources and aids needed to support them. 

## Agency Responsibilities

**The U.S. Office of Personnel Management (OPM)** provides policy guidance and technical assistance to agencies in establishing and improving EAPs. In the development and implementation of EAPs, OPM works closely with the Department of Health and Human Services.

The Department of Health and Human Services' (HHS) Federal Occupational Health (FOH) (external link) provides professional consultation and technical assistance to agencies in the development and oversight of EAP programs and delivers comprehensive EAP services to agencies through interagency agreements. Federal professionals monitor and evaluate the delivery of program services and provide quality assurance that employee and agency needs are being met. HHS' Substance Abuse and Mental Health Services Administration (SAMHSA)(external link) provides assistance to agencies on facilitating and extending programs for the prevention of drug abuse and for the treatment and rehabilitation of drug abusers. In terms of the Drug-Free Federal Workplace Program, SAMHSA is responsible for enforcing the **Mandatory Guidelines on Drug Testing** and coordinating the review of agency drug plans under **E.O. 12564**. SAMHSA also provides technical assistance to Federal agencies on drug testing, medical review, laboratory certification, and overall drug program implementation. SAMHSA compiles the ***Semi-Annual Report on Drug Testing***.

Individual Federal Agencies Responsibilities 
              - Developing agency policy on EAP goals and training
              - Providing top management support and endorsement for EAPs
              - Determining the extent of services to be provided through the EAP and the methods for providing them
              - Negotiating or consulting with unions, as appropriate, on the provision of EAP services to bargaining unit employees
              - Publicizing the EAP through internal memos, newsletters, posters, etc.
              - Encouraging employee utilization of the EAP by making these services convenient and available to employees

## EAP Legislation, Regulations, & Executive Orders

Title 5 U.S.C. 7901, Public Law 79-658(external link)(PDF file) enables each agency to establish a health service program to promote and maintain the physical and mental fitness of employees.

Counseling programs for Federal civilian employees who have substance abuse problems are required by:
              - Sec. 201 of Public Law 91-616, 84 Stat. 1849, as amended and transferred to Sec. 520 of the Public Health Services Act by Sec. 2(b)(13) of Public Law 98-24 (42 U.S.C. §290dd-1),
              - Sec. 413 of Public Law 92-255, 88 Stat. 84, as amended and transferred to Sec. 525 of the Public Health Services Act by Sec. 2(b)(16)(a) of Public Law 96-24 (42 U.S.C. §290ee-1), and Sec. 7361 and Sec. 7362 of Public Law 99-570.

Public Law 99-570 (5 U.S.C. §§7361 and 7362), The Federal Employee Substance Abuse Education and Treatment Act of 1986, and title 5 Code of Federal Regulations (CFR) Part 792, requires Federal agencies to establish appropriate prevention, treatment, and rehabilitative programs and services for alcohol and substance use disorders for Federal civilian employees.

Public Laws 96-180 and 96-181 authorize your agency to extend counseling services, to the extent feasible, to family members of employees who have alcohol and drug problems, and to employees with family members who have a substance use disorder.

Public Law 79-658 authorizes the head of agency to establish health services programs for employees, also forms the basis for expanding counseling programs from those dealing solely with a substance use disorder to broad range programs which provide counseling for other personal problems, e.g. family, financial, marital, etc.

Executive Order 12564(external link)(PDF file) requires your agency to establish a drug-free Federal workplace program, including an EAP as an essential element in achieving a drug-free workforce. Your agency must refer all employees found to use illegal drugs to the EAP for assessment, counseling, and referral for appropriate 'treatment or rehabilitation.

## Federal EAPs: Guiding Principles, Frameworks, & Definitions

The Federal EAPs: Guiding Principles, Frameworks, and Definitions(PDF file) is the product of the 2008 Federal Employee Assistance Program Summit. Developed as a guide, rather than a requirement, for Federal EAP Administrators and other stakeholders, the information provided is based on participants' knowledge of best practices in the EAP field, as well as their own experience and understanding of EAP in Federal workplaces, and is intended to address the ways in which these programs can best meet mental and behavioral health needs of the Federal workforce.

## Confidentiality and the EAP

Every agency provides EAP services to its employees at no cost. These programs are staffed by certified counselors who are available to discuss problems in a confidential, helpful manner. To the extent permitted by law, except when maintaining confidentiality could compromise the security of the workplace or compromise an ongoing criminal investigation, it is important to maintain the confidentiality of an employee who discloses information. When information provided by a victim must be disclosed within and/or external to an agency (such as due to security reasons), an agency should limit the breadth and content of such disclosure to information reasonably necessary to protect the safety of the disclosing employee and others and to comply with the law. The agency should make every effort to provide advance notice to the employee who disclosed information about the fact that the information will be disclosed, with whom it will be disclosed, and why.

### Laws and policies that affect EAP Confidentiality

              - Confidentiality regulations related to alcohol and substance use patient records (42 CFR Part 2)(external link)
              - The Privacy Act(external link)
              - Health Insurance Portability and Accountability Act (HIPPA)
              - State laws, especially covering child and elder abuse reporting
              - Professional association standards and codes of ethics
              - Individual agency policies and procedures should consistently reflect laws and regulations related to confidentiality.

### Know Your EAP Participant Rights!

              - You have the right  to be treated in a respectful manner when approaching the EAP for support.
              - You have the right  to seek support from the EAP on a  voluntary  basis and to provide consent before receiving services.
              - You have the right  to be supported in a confidential environment. With the exception of specific instances (see next bullet), information about your discussions with EAP representatives cannot be disclosed without your permission. There are regulations (42 CFR Part 2) that require confidentiality of alcohol and substance use records in particular, and they provide penalties for unlawful or unauthorized release of information. Those same regulations prohibit the implicit or negative disclosure of information from any kind of interaction with the EAP and, as such, agency EAPs may not release any information without a signed consent. We encourage you to contact your agency's EAP administrator for more information. To learn more, you can find contact information for your EAP administrator through our  Agency POC Contact Tool . You may also wish to contact your local Human Resources office for more information about your agency's EAP.
              - You have the right  to be informed that Under 42 CFR Part 2, any instances of suspected child abuse and neglect must be reported to appropriate State or local authorities. Also, when a client commits, or threatens to commit, a crime that would harm themselves or someone else, law enforcement personnel must be informed. If information is shared that points to a potential threat to national security, law enforcement personnel must be informed.
              - You have the right  to confidentiality, regardless of your status within your agency. It doesn't matter if you are the head of the agency, a manager, or any other employee, everything will be kept confidential.
              - You have the right  to refuse to sign a release of information regarding your involvement in the EAP. However, there may be instances where it will be in an employee's best interests to sign a release of information, e.g., when an employee is seeking accommodation for a certain physical or emotional problem. Another example might be when an employee is involved in a potential disciplinary situation and wishes to show management his or her sincerity in seeking assistance with the problem. Based on this information regarding an employee's involvement in the Employee Assistance Program, a supervisor  *may or may not*  decide to hold any disciplinary action in abeyance pending a positive change in the employee's performance or conduct. A final decision would be subject to supervisory and agency discretion.

The following are the most frequently asked questions about the confidentiality of EAP records. To find more FAQs on EAP and Work/Life, please visit to Work/Life FAQs.

## I have a problem with drugs. My performance is quite good, and I've received a number of awards. I'm afraid that if I go to the EAP for help that my career will be impacted. Can this happen?

No. Information about your discussions with the EAP cannot be disclosed without your permission. There are regulations (42 CFR Part 2) that require confidentiality of alcohol and substance use records, and they provide penalties for unlawful or unauthorized release of information.

## If there are regulations that guarantee confidentiality for persons who misuse drugs or alcohol, what about those of us with other types of problems?

Those same regulations prohibit the implicit or negative disclosure of information and, as such, agency EAPs may not release any information without a signed consent, no matter what the nature of the problem is.

## Can I be forced to sign a release of information regarding my involvement in the EAP?

No. However, there may be instances where it will be in an employee's best interests to sign a release of information, e.g., when an employee is seeking accommodation for a certain physical or emotional problem. Another example might be when an employee is involved in a potential disciplinary situation and wishes to show management his or her sincerity in seeking assistance with the problem. Based on this information regarding an employee's involvement in the Employee Assistance Program, a supervisor might decide to hold any disciplinary action in abeyance pending a positive change in the employee's performance or conduct.

## I am a supervisor, and I am interested in talking to one of our agency's EAP counselors. Will my participation be kept confidential as with any other employee?

It doesn't matter if you are the head of the agency or any other employee, everything will be confidential.

## Under what circumstances can information about me be disclosed without my permission?

Under 42 CFR Part 2, any instances of suspected child abuse and neglect must be reported to appropriate State or local authorities. Also, when a client commits, or threatens to commit, a crime that would harm someone else or cause substantial property damage, law enforcement personnel must be informed.

## I need to seek help from the EAP, but I would be terribly ashamed if anyone at my agency found out. How can I be sure that my coworkers or supervisor won't find out?

Most agencies have issued internal policy about their EAPs which assures that no matter what an employee's problem is, it will remain confidential.

We encourage you to contact your agency's EAP administrator for more information.  You can find contact information for your EAP administrator through our Agency POC Contact Tool.  You may also wish to contact your local Human Resources office for more information about your agency's EAP.