Date: December 3, 1992
Part 227: Personnel Relations and Services
Originating Office: Division of Personnel Management
4.1 Purpose. The purpose of this chapter is to establish Service policies and procedures for providing confidential and professional assistance to employees to aid in the resolution of personal problems affecting performance and/or conduct on the job.
4.2 Objective. The objectives of this chapter are to achieve and maintain an acceptable level of employee performance and conduct by assisting employees with personal problems and eliminating the need to take corrective personnel actions against employees.
4.3 Scope. All employees of the Service are covered by the guidelines set forth in this chapter regardless of type or tenure of appointment. Additionally, the services offered by the Employee Assistance Program (EAP) are available to families of employees who have alcohol or drug problems.
4.4 Authorities. This chapter is promulgated under the authority of Public Laws 91-616 and 92-255, as amended; 5 CFR 792; FPM Chapter 792, and 370 DM 792.
A. The Chief, Division of Medical and Health Services, Department of the Interior, serves as the Department's EAP Program Administrator and is responsible for developing and implementing a Departmentwide EAP.
B. The Director is responsible for Servicewide direction of the EAP.
C. The Assistant Director - Policy, Budget and Administration is responsible for the effective administration of the policies and procedures that govern the EAP.
D. The Chief, Division of Personnel Management, is responsible for developing, implementing, and managing Service policy regarding the EAP, and for establishing and operating an EAP within Headquarters.
E. The Regional Directors, Regions 1 - 7, are responsible for the establishment and administration of an EAP within their respective Regions in accordance with law and regulation and the policies set forth herein.
F. The Regional Director, Region 8, is responsible for ensuring that all Region 8 employees are covered by an EAP. Due to the geographical dispersity of Region 8 employees throughout Regions 1 - 7, this responsibility may be accomplished either through a coordinated effort with the other Regional Offices to have Region 8 employees covered under their programs, or through the establishment of a separate Region 8 EAP in accordance with law and regulation and the policies set forth herein.
G. The Regional Personnel Officers, Regions 1, 3, 4, 5, 6, and 7, and the Assistant Regional Director - Human Resources, Region 2, are responsible for appropriately conducting and operating an effective EAP in their respective Regions in accordance with the provisions of law and regulation and the policies set forth herein.
H. The Chief, Office of Administrative Support, Region 8, is responsible for appropriately conducting and operating an effective EAP in Region 8 in accordance with the provisions of law and regulation and the policies set forth herein, and/or working cooperatively with Regions 1 - 7 to ensure coverage of Region 8 employees under one of their programs.
I. The EAP Administrator is an individual designated within the Division of Personnel Management who is responsible for ensuring the establishment and maintenance of an effective EAP throughout the Service, and for carrying out the day-to-day operational functions of the EAP for Headquarters. (Refer to 4.9 for a breakdown of specific functions assigned to the EAP Administrator.)
J. The EAP Coordinators are individuals designated within each Regional Office who are responsible for carrying out the operational aspects of the EAP. (Refer to 4.10 for detailed functions of the EAP Coordinators.)
K. Supervisors are responsible for counseling employees on performance/conduct deficiencies and, during the course of such counseling, referring employees to the EAP if they believe that a personal problem may be contributing to or causing the conduct/performance difficulties. In addition, supervisors must refer employees to the EAP when employees are found to be using illegal drugs.
L. Employees are responsible for achieving and maintaining acceptable performance and conduct on the job, which may include seeking EAP assistance with any personal problem adversely impacting upon performance and conduct.
A. Alcoholism. A chronic disease characterized by repeated excessive drinking that interferes with the person's health, interpersonal relations, or economic functioning.
B. Corrective Personnel Action. A formal personnel action taken to correct employee misconduct and/or unacceptable performance (e.g., reprimand, suspension, demotion, removal).
C. Drug Abuse. A health problem characterized by the use of a drug in a manner or to a degree that interferes with the person's health, interpersonal relations, economic functioning, or social standing or conduct.
D. EAP Provider. A private purveyor, another Federal agency, a cooperative interagency program (consortium), an in-house medical services unit, or some other source with which arrangements have been made by Headquarters and each Regional Office individually for the provision of EAP services.
E. Personal Problems. Such difficulties may include marital problems, financial or legal dilemmas, emotional distress, or adversities caused by alcohol or drug abuse.
F. Referral. The act of advising employees of the existence of the EAP or other related sources and a recommendation that employees seek assistance from the source, or personal and voluntary pursuit by employees for assistance through the EAP. (See 4.15 for additional information on referral to the EAP.)
4.7 General Policy. As an employer, the Service recognizes that emotional stress due to inability to cope with personal problems, including alcoholism and drug abuse as well as other emotional disorders, is a health problem that can seriously affect the productivity of employees. Employees whose job performance, attendance, behavior, and/or work relationships are adversely affected by emotional stress, including chemical dependency, will receive the same careful consideration and offer of assistance extended to employees having any other illness or health problems. It is anticipated that through this policy employees experiencing a personal problem will be encouraged to voluntarily seek assistance on an entirely confidential basis and, when necessary, follow through with prescribed counseling and treatment.
4.8 Basic Functions of the EAP. The EAP is a program designed to recognize instances in which employees' poor performance, attendance, or behavior is due, at least in part, to their failure to cope with a personal problem; offer assistance to employees in identifying the problem; and provide for confidential and professional counseling for employees with personal problems that affect their everyday lives and/or conduct or performance on the job. Each Regional Office has been delegated authority to develop and implement an EAP for their employees consistent with law and regulation and the policies stipulated in this chapter. Following are the primary services offered to employees by the EAP:
A. Short-term counseling and problem assessment by an EAP provider at no cost to employees;
B. Referral for extended treatment and rehabilitation, if necessary, to an appropriate community service or professional resource. Long-term treatment/rehabilitation at Government expense is prohibited; however, careful consideration will be given to employees' health insurance during the referral process in an effort to minimize the costs of treatment/rehabilitation for employees; and
C. Follow-up during period of treatment/rehabilitation to aid employees in achieving an effective and successful readjustment to the job both during and after treatment.
A. Developing and maintaining counseling capability;
B. Providing policy guidance and assistance to Headquarters supervisors and employees as well as Regional EAP Coordinators regarding the EAP;
C. Publicizing the EAP and the services it provides through employee information bulletins, posters, pamphlets, flyers, presentations at orientation sessions, etcetera;
D. Consulting with established unions concerning EAP policies and procedures through cooperation with the Labor Management Relations Specialist in the Division of Personnel Management;
E. Monitoring and evaluating implementation of the EAP. Employee Assistance Program evaluations may be done in conjunction with personnel management evaluations;
F. Compiling statistics and preparing periodic Servicewide reports on the EAP to the Department and the Office of Personnel Management;
G. Maintaining liaison and cooperation with other Federal agencies, private industry, State and local governments, professional groups, and civic organizations to ensure that the EAP remains a current and effective counseling and treatment source for employees; and
H. Assuring that training regarding the EAP is made available to supervisors and employees. In addition, consideration should be given to include union representatives in briefing sessions or other training and orientation programs so that there will be a mutual understanding of policy, referral procedure, and other elements of the program.
4.10 EAP Coordinators' Role. Since each Regional Office maintains responsibility for the establishment and operation of its own EAP, EAP Coordinators will carry out the functions of the EAP Administrator as stated in 4.9 above on a Regional basis.
4.11 Employees' Role in the EAP. Employees are required to achieve and sustain successful performance and appropriate conduct on the job. Should a personal problem adversely impact job performance, employees are strongly encouraged to seek professional help available through the EAP. Participation by employees in the EAP is entirely voluntary. Employees cannot be forced, threatened, or coerced into accepting any form of counseling or treatment. In addition, employees cannot have corrective personnel actions taken against them for failure to accept an offer of counseling (except in cases where employees have tested positive for illegal drugs). However, failure to correct deficiencies in job performance or behavior may result in corrective personnel actions being effected against employees. Notwithstanding certain rare circumstances; e.g., an employee serving in a drug testing designated position and found to be using illegal drugs, employees with a personal problem affecting job performance/conduct will not have job security or promotional opportunities jeopardized merely by making a request for assistance.
4.12 Supervisors' Role in the EAP. When employees fail to successfully meet established performance and/or conduct standards, supervisors have both the responsibility and the authority to confront employees with the deficiencies and to provide them with an opportunity to correct the problems. Additionally, it is also the responsibility of supervisors to refer employees to seek assistance through the EAP with any personal problem that might be adversely affecting job performance and/or conduct. Following is guidance for adhering to these responsibilities. Supervisors shall also contact the EAP Administrator in Headquarters or the Regional EAP Coordinators, as appropriate, for additional guidance. The EAP Administrator/Coordinators are located in the servicing personnel offices with the exception of the Region 2 EAP Coordinator who is located in the Office of the Assistant Regional Director - Human Resources, and the Region 8 EAP Coordinator who is located in the Office of Administrative Support. It is the responsibility of every supervisor to:
A. Be alert, through continuing observation, to changes in work or behavior, or both, of subordinate employees. Supervisors are in close contact with employees in their work situations and, therefore, will ordinarily be the first to note work or behavioral problems that interfere with satisfactory performance;
B. Document specific instances when employees' work performance, behavior, or attendance fails to meet established standards or appears to be deteriorating;
C. Conduct counseling sessions with employees primarily to discuss specific areas of performance/conduct problems. In the course of such counseling, encourage employees to seek assistance through the EAP if they believe the conduct/performance problems have been triggered by personal problems. Supervisors can have the greatest impact on motivation of employees toward self-assistance. Such counseling should include a contact for the EAP (generally the EAP Administrator for Headquarters employees or the appropriate Regional EAP Coordinator) and a statement that failure to correct performance/conduct deficiencies may lead to corrective personnel actions. Should supervisors suspect a specific employee problem, they must avoid making a diagnosis; e.g., alcoholic or drug abuser, as this is a decision to be made only by a professionally trained individual of the EAP. Offers of referrals to the EAP shall be documented in writing for future reference should employee misconduct/unsatisfactory performance continue and necessitate corrective personnel action; and
D.If employee performance/conduct problems do not improve to an acceptable level after seeking assistance from the EAP or if no EAP assistance has been sought, supervisors should initiate appropriate corrective personnel actions against employees.
Supervisors who take corrective personnel actions against employees without first offering the assistance of the EAP run the risk of having such actions reversed on appeal if the cause of the employees' poor performance/conduct is attributable to a personal problem for which employees are entitled "reasonable accommodation;" e.g., alcohol or drug abuse. Unless extreme situations; e.g., national security, criminal acts, positive illegal drug tests, or safety of the employee or others necessitate immediate corrective personnel action at the same time assistance is offered, supervisors are strongly encouraged to suspend corrective personnel action proceedings to permit employees a reasonable time for rehabilitation and an opportunity to return to a satisfactory performance level. Guidance and policy regarding reasonable accommodation can be found in 227 FW 2, Discipline and Adverse Actions.
Should employees be found to be using illegal drugs or to have an alcohol dependency problem, supervisors shall refer to sections 4.13 and 4.14, respectively, for more specific regulations and policy concerning mandatory administrative actions.
4.13 Illegal Drug Use. The Departmental Manual, 370 DM 792,10, Drug Testing Procedures, mandates that employees found to be using illegal drugs shall be referred to the EAP for assessment, counseling, and referral for treatment or rehabilitation, as appropriate. Should employees refuse to obtain counseling or rehabilitation through the EAP after having been found to use illegal drugs, supervisors shall initiate action to remove employees from the Federal service. Supervisors shall consult with the employees' servicing personnel office for technical assistance regarding mandatory EAP referral and possible corrective personnel action as stipulated by Departmental regulations.
4.14 Alcohol Dependency. Employees handicapped by alcoholism must be provided a "firm choice" between accepting an offer of rehabilitation or otherwise facing corrective personnel action up to and including removal. Supervisors shall consult with the employees' servicing personnel office regarding the "firm choice" requirement.
A. Supervisory Referral. A supervisor refers an employee to the EAP usually because of a deterioration in job performance or conduct. (See 4.12 for additional information regarding a supervisor's role in the EAP.)
B. Self-referral. An employee voluntarily requests assistance from the EAP at any time to obtain help for a personal problem.
C. Mandatory Referral. An employee who tests positive for illegal drug use is referred to the EAP for treatment and/or rehabilitation. (See 4.13 regarding illegal drug use.)
A referral for help through the EAP may also be made by a personnelist or an equal employment opportunity counselor.
4.16 Granting of Absence for Participation in the EAP. Employees shall be allowed up to 1 hour (or more as necessitated by travel time) of excused absence for each counseling session, up to a maximum of six sessions, during the initial counseling/assessment phase of a Service sponsored EAP program. Absences during duty hours for extended treatment or rehabilitation must be charged to annual or sick leave or leave without pay, as appropriate.
4.17 Confidentiality Requirements. The confidentiality of documentation resulting from EAP participation with drug and alcohol problems is protected by Public Law 93-282, as amended, Title 42, Part 2, of the Code of Federal Regulations, and the Privacy Act. These confidentiality regulations attempt to strike a balance between the recognized need for privacy and anonymity on the part of those who obtain treatment and other values that sometimes conflict with the achievement of this goal. The law requires that information relating to the identity, diagnosis, prognosis, or treatment of patients that is maintained in connection with an alcohol or drug abuse prevention function is confidential and may be released only under such circumstances and for such purposes as authorized and outlined in the sections immediately following. These confidentiality requirements will apply to all EAP activities and all parties performing EAP functions. The EAP Administrator, EAP Coordinators, and supervisory officials should become familiar with the contents of both the law and regulations.
4.18 Disclosure Without Consent. Whether or not employees give written consent, the content of medical records may be disclosed as follows.
A. To medical personnel to the extent necessary to meet a bonafide medical emergency (42 CFR 2.51).
B. To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation, but such personnel may not identify directly or indirectly, any individual employee in any report of such research, audit, or evaluation, or otherwise disclose employee identities in any manner (42 CFR 2.52).
C. If directed by the courts (42 CFR 2.61).
4.19 Disclosure With Consent. Circumstances in which disclosure may be made with the patients' consent are described in the following sections of 42 CFR, Part 2.
Section 2.33 - Diagnosis, treatment and rehabilitation
Section 2.34 - Prevention of certain multiple enrollments
Section 2.35 - Legal counsel for patient
Section 2.36 - Patient's family and others
Section 2.37 - Third-party payers and funding sources
Section 2.38 - Employers and employment agencies
Section 2.39 - Criminal justice system
Section 2.40 - Situations not otherwise provided for
4.20 Method of Disclosure. Consent for release of EAP information shall be obtained on Form 3-2047 (Exhibit 1). The EAP information shall be released on Form 3-2048 (Exhibit 2). Both forms may be reproduced locally. Employee consent and medical release forms other than those described above that are utilized by outside EAP providers are also acceptable provided such forms are developed in compliance with Federal law and regulation. Employees are encouraged to sign a written consent form to serve as notification/verification to supervisors that assistance is being sought through the EAP. Otherwise, supervisors may initiate or continue to proceed with a corrective personnel action when an opportunity for treatment/rehabilitation might be more appropriate.
4.21 Information not Constituting Disclosure. The following types of communications do not constitute disclosure of records.
A. Communications of information between or among personnel having a need for such information in connection with their duties. Generally, this would include communications among medical or health personnel, counselors, program coordinators, and program administrators.
B. Communications between individuals coordinating the EAP within the Service and a qualified service or organization regarding information needed by the EAP provider to perform its services to the program. Examples of service organizations would be a consortia that has contracted to offer diagnostic, rehabilitative, and/or referral services for employees, or a laboratory performing urinalysis services.
C. Communications of information that include neither employee identifying information, identifying numbers, nor symbols assigned by the EAP to employees (e.g., the annual report to the Office of Personnel Management on the EAP).
4.22 Supervisory Notes/Discussions. Generally, supervisors' notes regarding employee problems are not subject to the requirements of the confidentiality regulations since supervisors, as such, are not performing an EAP function. However, supervisors are strongly cautioned not to discuss employee problems or share supervisory notes with persons not having a need to know as this exhibits poor supervisory practice and may constitute violation of the Privacy Act.
4.23 Other Disclosures. The confidentiality regulations do prohibit persons performing an EAP function from disclosing information obtained as a result of the performance of that function to unauthorized persons (including supervisors) without the written consent of employees. (Refer to 4.20 on method of disclosure.) In other words, supervisors, after referring employees to the EAP, cannot expect feedback on the employees' progress without their written consent. If consent is given, supervisors may not pass on the information received as a result of that consent to any other unauthorized persons without the signing of a separate consent. More than one consent, however, may be contained on a single consent form as long as the requirements for consent are met.
A. The EAP records will be maintained in a secure room or locked in a file cabinet, safe, or other similar container accessible to only authorized personnel. In the event that such records are automated, they will be considered "sensitive" as defined in 270 FW 7 (Automated Information System Security) and must be handled accordingly.
B. Official Personnel Folders shall not include information concerning employees' particular problems or efforts to rehabilitate them except as may be contained in specific charges leading to a letter of reprimand.
For additional information about this chapter, contact your servicing Human Resources office. For information about this Web page, contact Krista Bibb, in the Division of Policy and Directives Management, at Krista_Bibb@fws.gov