U.S.
DEPARTMENT OF AGRICULTURE
WASHINGTON,
D.C. 20250
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DEPARTMENTAL REGULATION |
Number: 4430-792-1 |
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SUBJECT Employee Assistance Program |
DATE: March 12, 2012 |
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OPI: Office of Human Resources
Management |
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Section Page
1 Purpose 1
2 Special
Instructions 1
3 Policy 2
4 Definitions 2
5 Authorities 4
6 Responsibilities 5
7 Program
Administration 6
8 Inquiries 8
1. PURPOSE
This regulation establishes requirements for Department of
Agriculture (USDA) agencies to develop and implement an Employee Assistance
Program (EAP).
2. SPECIAL INSTRUCTIONS
a. This
regulation supersedes Departmental Regulation (DR) 4430-792-1 dated August 1,
2003.
b. The principle
changes to DR 4430-792-1 are as follows:
(1)
Changed
responsibilities to reflect current duties due to reorganization.
(2)
Changed
the definition of EAP to a more inclusive program that emphasizes
both prevention and
intervention to enhance organizational productivity.
(3)
Deleted
the restriction on agencies not being authorized to use appropriated
funds to
meet personal needs of family members (household members
residing
in the home of the employee including authorized same-sex
domestic
partners) as family members are authorized to utilize the EAP
if their
problems are related to the employee’s problems for drug and
alcohol abuse even though the employee is not a client of
the EAP.
However, family members of Federal employees may not participate in any
other EAP health
service programs, as the use of appropriated funds for
family
members is not authorized by Title 5 United States Code (U.S.C. §
7901). Clarified the definition of a family member
(4)
Clarified
that failure of an employee to voluntarily participate in counseling
or in a
rehabilitative program at the informal referral of a supervisor cannot
be used
as a basis for taking disciplinary action except in cases of drug use
and/or refusal
to take a drug test.
c. Supplementation: Agencies and
staff offices may supplement this directive with
prior approval of the Director, OHRM. Supplemental
regulations issued by
agencies or staff offices
may not conflict with the contents of this directive.
Agencies and staff offices must provide copies of any supplemental regulations
to
employees as required.
3. POLICY
a. Agencies
must provide appropriate programs and services to employees whose emotional,
personal, alcohol, and/or drug problems may affect their work performance or
conduct.
b. Agencies may
join a consortium, negotiate their own contracts, join existing EAP agreements,
or provide in-house counseling which meets the requirements of Title 5 Code of
Federal Regulations (CFR), Part 792. The
Office of Human Resources Management (OHRM) Employee Relations Office will
assist agencies in program development.
c. To
the extent feasible, and when it will enhance the performance of the employee,
agencies are encouraged to extend these services to families of employees. Family members whose problems are related to
the employee’s problems for drug and alcohol abuse may receive service even
though the employee is not a client of the EAP as authorized by 5 U.S.C. §
7361-7362. However, family members of
Federal employees may not participate in any other EAP health service programs,
as the use of appropriated funds for family members is not authorized (5 U.S.C.
§ 7901). .
4. DEFINITIONS
a. EAP is
a worksite based program designed to assist in the identification and resolution
of work-related and non-work-related productivity problems associated with employees impaired
by personal concerns including, but not limited to, health, marital, family,
financial, alcohol, drug, legal, emotional, or other personal concerns which
may adversely affect employee job performance. The specific core activities of
EAPs include:
(1) Services for individuals (such as
identification and resolution of job-performance issues related to an
employee’s personal concerns, and assessment, referral, and follow-up);
(2) Services for managers and supervisors (such
as assistance in referring employees to the EAP, supervisor training, and
management consulting);
(3) Services for organizations (such as
violence prevention/crisis management, group interventions, and employee
orientation); and
(4) Administrative services (such as the
development of EAP policies and procedures, outreach, evaluation, and referral
resources development).
b. EAP
Consortium is a group of federal agencies contracting with one agency or
contractor to provide employee assistance services.
c. EAP
Coordinator is the individual designated by USDA Mission Area/Agency Heads
and Staff Office Directors as responsible for implementing and operating the
EAP within their agency.
d. EAP
member is an employee covered under an Agency EAP.
e. Employee is an
individual meeting the criteria described in 5 U.S.C. 2105.
f. Extending
services to families means allowing counseling of family members (including
same-sex domestic partners as defined by OPM memorandum in paragraph 5j) where
the treatment or counseling concerns the alcohol, and/or drug problems of the employee
himself/herself, and for employees where the counseling relates to the alcohol, and/or drug problems of the family
member. The family members are covered
under the contract the Agency/Mission Area enters into with the EAP provider.
Family
members are:
(1)
Spouse – legally married spouse of an EAP
member.
(2)
Children – dependents of the EAP member.
(3)
Domestic partner – partner who resides in
the home of an EAP member.
(4)
Household members – any legal dependent
regardless of home address, or
significant
other living in the employee’s household.
(5) Student – dependent children of the EAP
member who attend school but do
not
reside with the eligible EAP member.
5. AUTHORITIES
a. Comptroller
General (CG) Decision B-187074, dated November 7, 1977, holds that under 5
U.S.C. 7901, an agency may expend appropriated funds for the procurement of diagnostic and preventive
psychological counseling services. Such
services should not include treatment, but rather problem identification, referral
for treatment or rehabilitation and follow-up to aid an employee in effective
readjustment on the job during and after treatment.
b. Public Law
99-570 (5 U.S.C. §§7361-7362), 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 rehabilitation programs and
services for alcohol and drug abuse problems for Federal civilian employees.
c. 5 U.S.C §
7901 authorizes the head of an agency to establish health services programs for
employees, also forms the basis for expanding counseling programs from those
dealing solely with substance abuse to broad range programs which provide
counseling for other personal problems, e.g., family, financial, marital, etc.
d. 5 U.S.C. §§
7361-7362
authorized agencies to provide 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 substance abuse problems.
e. Executive
Order 12564, dated September 15, 1986, “Drug-Free Federal Workplace,”
established the goal of a Drug-Free Workplace through education and training
programs, drug testing programs, and employee assistance programs.
f. Department
of Agriculture’s Plan for a Drug Free Workplace certified to Congress by the
Department of Health and Human Services on April 27, 1988, as meeting the
requirements of Public Law 100-71 (codified at 5 U.S.C. Section 7301), and
Executive Order 12564 on Drug-Free Workplace Programs. The Secretary of Agriculture and the
Department of Health and Human Services have approved all subsequent changes
and modifications made to the 1988 certified plan.
g. 42 CFR Part
2, Confidentiality of Alcohol and Drug Abuse Patient Record, prohibits
disclosure of information without the patient’s written consent.
h. 5 U.S.C. 552a establishes requirements
governing the maintenance of records by agencies pertaining to individuals and
access to these records by the individual(s) to whom they pertain.
i. Presidential
Memorandum, dated June 2, 2010,-“Extension of Benefits to Same-Sex Domestic
Partners of Federal Employees.”
j. Guidance in
memorandum from the Director of OPM dated June 2, 2010 – “Implementation of the
President’s Memorandum Regarding Extension of Benefits to Same-Sex Domestic
Partners of Federal Employees.”
6. RESPONSIBILITIES
a. The
Assistant Secretary for Administration (ASA) will: Advise the Secretary of Agriculture, Mission
Area/Agency Heads, and Staff Office Directors in the development and
implementation of policies, programs, and oversight of EAPs.
b. The
Director, Office of Human Resources Management (OHRM) will:
(1)
Advise the ASA in planning, developing, and
implementing policies,
programs, and systems
to manage EAPs; and,
(2)
Provide and interpret USDA policies and
standards for EAPs.
c. The
Employee Relations Officer, OHRM will:
(1) Provide oversight of EAPs; and,
(2) Provide agency officials with technical assistance and
consultative
services for complex
EAP issues.
d. The Mission Area/Agency Heads/Staff
Office Directors will:
(1)
Designate an EAP coordinator to coordinate
the program with both external
sources and internal USDA offices;
(2)
Issue policy statements and implementing
instructions;
(3)
Develop and maintain programs for short-term
counseling (not to exceed
6 to 8 visits) and/or referral services for employees with personal (e.g.,
emotional, financial, legal), alcohol, and/or drug abuse problems;
(4)
Provide for education and awareness programs
to inform employees of the
counseling and referral services and to emphasize prevention, early
intervention, and treatment; and,
(5)
Provide for training to help managers and
supervisors recognize (NOT
diagnose) early signs of potential problems, which could involve alcohol/drug abuse, and to understand
confrontation and referral procedures.
7. PROGRAM ADMINISTRATION
a. Employee Participation:
(1)
Employees may voluntarily participate in EAP
or their supervisor may refer
them
for counseling on personal, alcohol, and/or drug problems that
adversely
affect work performance or conduct.
(2)
Except as otherwise provided in paragraph 7a(4)(b),
failure to voluntarily
participate
in counseling or in a rehabilitative program at the referral of a
supervisor cannot be used as the basis for taking
disciplinary action against
an employee.
(3)
Employees who fail to improve their conduct
or performance, after a
referral to the EAP may have a conduct or performance-based
action
initiated
against them.
(4)
The EAP is not responsible for the
implementation or operation of the
USDA drug testing program. The EAP is there to provide counseling and
assistance as follows:
(a)
Employees
who use illegal drugs may self-refer to the EAP under the
Safe Harbor provision in the USDA Plan for a Drug Free Workplace.
This
provision protects employees from disciplinary actions that may
otherwise be taken against employees found to be using drugs
illegally. In order
to qualify for this provision, the employee must:
voluntarily admit their
drug use to appropriate supervisors or
management officials
before being identified through other means;
obtains and completes counseling and rehabilitation
through the EAP;
and thereafter
refrains from illegal drug use. The Safe
Harbor
provision does not
protect employees from disciplinary actions and/or
random testing if
they refuse to notify their supervisors that they are
seeking help for
their drug problems.
(b)
Employees with a verified positive result to
a drug test will be referred
to the EAP. The EAP will then perform its
normal functions of
counseling and
assisting employees in dealing with the drug problem.
As provided by the Department’s Plan for a
Drug-Free Workplace,
employees may be
subject to disciplinary action, including removal
from service, for
refusing to obtain counseling or rehabilitation after
having been found to use drugs.
(5)
Costs associated with treatment (beyond the
assessment sessions provided
by the EAP counselor) are the responsibility of
the employee. Employees
can use their Federal employee health benefits
plan for financial assistance
with covered services.
(6)
Employees are on official duty when they
meet with the EAP, provided that
they obtain prior consent from their
supervisor. The impact of the
employee’s absence on the workplace will be
considered by the supervisor
in making this accommodation. In an emergency, supervisory approval
may be obtained after using the EAP. The supervisor may allow the
employee up to one hour (or more as
necessitated by travel time) of
excused absence for each counseling session
during the assessment/referral
phase. Confirmation
of attendance will be provided by the EAP in
accordance with confidentiality procedures in
paragraph 7(b). If an
employee does not want their supervisor to know
of their attendance, they
must arrange for appointments outside of normal
duty hours or while on any
leave except sick leave. Thereafter, absences during duty hours for
rehabilitation or treatment at community
resources must be charged
to the appropriate leave category in accordance
with law and leave
regulations.
b. Confidentiality: Given the personal nature of visits to the
EAP, employees are naturally concerned about the privacy and confidentiality of
information maintained by the EAP. When
an employee comes to the EAP for assistance, the EAP staff will provide him/her
with a written notice concerning the confidential nature of EAP records along
with the conditions where information discussed in counseling may be disclosed. EAP client information and records are
protected from disclosure under 5 U.S.C. § 552a, the Privacy Act of 1974. In addition, records of individuals with
alcohol and drug issues are subject to extra restrictions, which are provided under 42 CFR, Part 2: “Confidentiality of Alcohol and Drug
Abuse Patient Records” regulations.
Depending on the location in which EAP services are provided and the
professional credentials of the EAP counselor, additional protection of client
information may be provided by state
and professional association laws, regulations and procedures. Generally, these laws and regulations
prohibit EAP staff from sharing any information about clients to anyone outside
of the EAP, without the specific written consent of the client. The EAP maintains a Privacy Act System of
Records Notice that details the procedures for maintaining the confidentiality
of client information and records. Prior
to any counseling (even telephonically which is only done in an emergency)
confidentiality is discussed and agreed upon by the client.
c. When
can information about an employee’s participation in the EAP be disclosed?
(1) Disclosure with consent: Obtain the employee’s written consent before releasing
any information, except where disclosure without consent of the client is
allowed (7c (2)). This applies to all
releases, including those to supervisors, treatment facilities, and family
members, without regard to the type of problem(s) the individual is
experiencing.
(2) Disclosure without consent: Disclosure without consent is only
permissible in a few specific instances, such as: To medical personnel in a
medical emergency; In response to an order of a court
of competent jurisdiction; To comply with Executive Order 12564, “Drug Free
Federal Workplace.”
Unauthorized release of any information covered under this provision
could result in fines up to $5,000.
Under certain circumstances, however, a counselor may disclose
information without the patient’s written consent. For example, any instances of suspected child
abuse and neglect may be reported to appropriate State or local
authorities. Also, when a patient
commits, or threatens to commit, a crime that would harm themselves or someone
else, or cause substantial property damage, law enforcement personnel may be
informed.
Employees may be
referred to the EAP by supervisors because of work performance and/or conduct
issues. Information about an employee’s
visit to the EAP will not be released to a supervisor without the employee’s
written consent, regardless of the nature of the referral, except in very limited
situations (e.g., when an employee uses the EAP during work hours, the EAP will
confirm that the employee attended an EAP session). Employees are not required to release
information about their visits to the EAP to supervisors. When they choose to do so, they will sign a
consent form that allows for the release of limited information.
c. Records: The Privacy Act (5 U.S.C. 552a) and
confidentiality regulations (42 CFR Part 2) provide guidelines for maintaining
USDA EAP consortium and agency EAP records.
These laws and regulations establish the circumstances justifying
release of these records. Employees
receiving counseling services must receive a copy of the EAP provider Privacy
Act Statement pertaining to EAP records.
An example of the information required in the Privacy Act Statement and
confidentiality guidelines is provided in Appendix A.
Note: The same confidentiality and privacy
guidelines cover employee family members who are authorized to utilize the EAP
services.
8. INQUIRIES
Direct all inquiries to the Office of Human Resources Management,
Employee Relations Office, Room 302W Whitten Federal Building, 1400 Independence Ave. SW, Washington, D.C. 20250; telephone
number (202) 720-3585.
-END-
APPENDIX
A
PRIVACY ACT STATEMENT and CONFIDENTIALITY INFORMATION (EXAMPLE)
We know it is a difficult decision to see an EAP counselor for the first time. Employees are sometimes concerned about the privacy of what they say. We would like to assure you that your EAP record is confidential and explain some of the laws and regulations that protect it. Your EAP counselors are committed to upholding the highest professional standards in maintaining your privacy.
The principal purpose of
maintaining information about you is to document your assessment, intervention
and follow-up activities. The information is also used to monitor your
progress. The information provided by you is voluntary. Limited information,
however, may impact the EAP counselor's ability to provide full services.
The Privacy Act covers
all EAP records. In addition, EAP records of clients with alcohol and drug
problems are subject to extra restrictions described in the
"Confidentiality of Alcohol and Drug Abuse Patient Records"
regulations. In some cases, EAP records may also be subject to the Privacy rule
under the Health Insurance Portability and Accountability Act (HIPAA). Generally, these laws and regulations
prohibit EAP staff from sharing any information about you outside the EAP.
There are some
situations, however, when information about you can be released. We are
required by law and regulation to inform you about these situations. We can
disclose information:
There are three types of disclosure:
a Disclosure with consent - employee's written consent is
obtained before any
information is
released, except where disclosure without the consent of the
client is
allowed.
b Disclosure without consent - only
permissible in a few instances, such as the
following:
(1)
to
medical personnel in a medical emergency or when the disclosure is
made in a non-identifiable form to qualified
personnel for research, audit or program evaluation;
(2) in
response to an order of a court of competent jurisdiction;
(3) to
comply with Executive Order 12564, "Drug Free Federal Workplace";
(4) an
EAP is required by law to report incidents of suspected child abuse and neglect
(in some States, elder and spouse abuse) to the appropriate State and local
authorities;
(5) an
EAP may make a disclosure to appropriate individuals, such as law enforcement
authorities and persons being threatened, if the client has committed, or
threatens to commit, a crime that would physically harm someone. This can be
done only if the disclosure does not identify the EAP client as an alcoholic or
drug abuser;
(6)
to a private firm, individual, or group
providing EAP functions
contractually. The contractor shall be required to maintain
all
confidentiality
safeguards and surrender these records to the EAP
Administrator at the time of
contract termination;
(7)
when your direct supervisor needs to confirm
that you have made or
kept
EAP appointments during regular duty hours or sick leave (no
other
information will be given without proper consent); and
(8)
if you are tested and receive a verified
positive drug test result (under the
Drug Free Workplace Program), in
which case your direct supervisor
must be
informed.
c Secondary disclosure - any
information disclosed with the employee's consent
must be
accompanied by a statement that prohibits further disclosure unless
the consent
expressly permits further disclosures.
Clients of the EAP have the right to access their own EAP records.
All EAP records are the property of the Federal department or agency
sponsoring the program.
I
understand that the initial EAP assessment is free of charge. If short-term counseling is determined to be
clinically appropriate, the EAP counselor or local affiliate (if applicable)
will also provide this service at no cost up to the maximum allowed by their
contract with USDA. However, I
acknowledge and understand that the EAP contractor or its affiliates are not
responsible for the treatment costs and/or services for which I may be referred
beyond the local EAP counselor or local affiliate counselor. I understand that it is my sole
responsibility to pay for all such services including all charges not covered
by insurance plans.
I have read the foregoing Privacy Act Statement and
Confidentiality Information, and I understand and agree to it.
___________________________________________________
Client
Name (Printed)
___________________________________________________ _______________
Client
Signature
Date
___________________________________________________ _______________
EAP Counselor Date