Are Employee Assistance Programs (EAPs) subject to ERISA, i.e., do we need a plan document for our EAP program?
It depends. Often the answer is yes — an employer-sponsored EAP is an ERISA plan, but it depends on whether the program provides medical care. Plans that provide medical care are subject to ERISA. According to Department of Labor advisory opinions, if an EAP has trained counselors who provide counseling service, the EAP probably provides medical care and is subject to ERISA. If the EAP only provides referrals to other professionals and is not staffed by trained counselors, it is probably not an ERISA plan. This is a gray area and many employers (and EAP firms) are unaware that an EAP may be an ERISA plan. Whether or not it is subject to ERISA has implications for plan document and SPD requirements, 5500 reporting, COBRA, etc. If you are in doubt, the safest route is to treat your EAP as an ERISA plan.
Our health insurance is self-funded; therefore, we have access to PHI. Can we take any follow-up action based on that PHI? Specifically, an employee was treated for an addiction, and our mission is to treat addictions. Staff must report if they have relapsed or have an addiction issue. Can we follow up with this employee?
Probably not. HIPAA prohibits an employer from using health plan information for any purpose other than providing health plan benefits. This means that health plan information cannot be used in connection with any other employee program, such as FMLA, disability, workers’ compensation, etc. In this particular case, the employer cannot look to the health plan to determine whether the individual may have relapsed or has an ongoing addiction issue.
To the extent that the health plan provides treatment for drug addiction, the health plan could look at health plan records to determine eligibility for a drug treatment program, but that information cannot be used for making any employment decisions about an individual.
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