Thursday, October 26, 2023

Workplace harassment and employee assistance programs

Is it legal under the ADA to mandate that an employee accused of sexual harassment use the company's employee assistance program? That's the question being asked in a lawsuit the EEOC just filed against Weis Markets.

According to the EEOC, after Weis Markets became aware of serious sexual harassment allegations against a supervisor, the company told her that she would be required to participate in its EAP as a condition of continued employment. 

The EAP referral would have required her to undergo a medical examination and to release medical information to the company, all for the purpose of the company determining whether she would be placed on a disability leave. When she refused to comply with the mandatory EAP referral, Weis Markets terminated her, per to the EEOC's lawsuit.

There is nothing in the ADA that prohibits an employer from requiring an employee to use an EAP. The mandatory referral, however, still must comply with the ADA's requirements on medical examinations and disability-related inquiries — they must be "job-related and consistent with business necessity." In many cases, courts have found such mandatory referrals to be "job-related and consistent with business necessity," including cases in which employees were accused of drug use, sexual harassment, workplace violence, and other on-the-job misconduct.

Thus, it's not clear to me why the EEOC believes the mandatory referral in this case is an ADA violation. The allegations against the terminated employee included frequent sexual comments in the workplace, statements indicating a propensity to commit violent acts, and forcibly kissing an employee's face without consent. Based on those allegations, it seems to me that Weis Markets could reasonably conclude that the EAP referral was "job-related and consistent with business necessity."

As this case nevertheless illustrates, these are tricky cases fraught with liability traps for the unwary employer. It's way better to call your employment lawyer before the EAP referral to determine its lawfulness rather than risk an expensive lawsuit on the back end.