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HR Order DOJ1200.1: Part 7, Chapter 7-1, Employee Assistance Program

A. References.

Statute 5 U.S.C. 552a
5 U.S.C. 7361 & 7362
5 U.S.C. 7901 & 7904
42 U.S.C. 290dd et seq.
Code of Federal Regulations 5 CFR Part 792, Subpart A
Executive Order E.O. 12564
DOJ Order DOJ 1200.1, Part 7, Chapter 2, Traumatic Incident Management
Guidance Drug-Free Workplace Plan, certified April 27, 1988
Key Terms Traumatic incident management
Family member
Substance abuse
Traumatic incident

B. Policy.

  1. It is the policy of the Department to provide its employees and family members access to an Employee Assistance Program (EAP) to offer resources to address: work-related problems, traumatic incidents, substance abuse, mental illness, marital or family problems, and financial or other personal problems. Since personal, financial, and health concerns may interfere with an employee’s performance, conduct, and attendance, the EAP is an appropriate resource to consult and refer.
  2. Scope of Services. Each component that directly operates its own EAP shall define the scope of its EAP services, including after-hours emergency services and eligibility.
    1. Services may include, but are not limited to: assessment, treatment planning, short-term counseling, financial counseling, Traumatic Incident Management (TIM), social service assistance, information and referral, and health education training.
    2. EAPs will provide short-term substance abuse counseling services for requesting employees and for employees who have been referred due to a positive drug test. EAPs will provide substance abuse prevention education and will coordinate their services with their Drug-Free Workplace Program (DFWP). Substance abuse education shall include information regarding component DFWP policy and testing procedures, and the negative effects drugs and alcohol can have on an employee or family member.
    3. EAP counseling, communications, and information and referral services may be in person, by telephone, or fax, but generally may not be by e-mail, internet, or intranet. Exceptions may be made when the employee gives consent to send and receive information to and from the EAP by e-mail, internet or intranet. Consent must be documented and retained in the employee's EAP file. Before an employee gives consent, he or she must be informed that there is no expectation of privacy regarding such communication or information stored within the Department's computer system.
  3. Duties and Responsibilities
    1. Assistant Attorney General for Administration (AAG/A). Establishes basic Department of Justice policy for this program.
    2. Deputy Assistant Attorney General for Human Resources and Administration (DAAG/HRA). Ensures the designation of Department EAP Administrators (“Component EAP Administrators”), other than the Justice Management Division (JMD) EAP Administrator.
    3. Director, Human Resources Staff, JMD. Designates the JMD EAP Administrator, who provides EAP services for Department Components, as may be appropriate. Advises the DAAG/HRA on matters related to component EAP performance.
    4. Deputy Director, Human Resources Staff, JMD. Oversees the work of the JMD EAP Administrator. Provides guidance and support for Departmentwide EAP services.
    5. Program Manager, Employee Assistance Program, Human Resources Staff, JMD. Acts as the JMD EAP Administrator with the following responsibilities:
      1. Proposes and develops overall Departmentwide EAP policy and interprets related policy; represents the Department in liaison with national, state, and community agencies, both public and private, on matters concerning EAP issues where Departmentwide attention and coordination are required; approves component EAP policy statements; oversees the development and maintenance of Component EAPs and evaluates their compliance with Federal law, regulation, and Department policy; ensures that managers and supervisors are aware of the EAP and related services.
      2. Establishes, maintains, and provides EAP services for the Offices, Boards, and Divisions (OBDs) and other components within the Department when the economy of scale (number of employees) makes such arrangements cost-effective, or as may be otherwise needed by the Department.
      3. Coordinates and develops Departmentwide procedures for EAP/TIM response following acts of terrorism or other disasters affecting Department personnel or facilities.
      4. Conducts evaluations of Component EAPs.
      5. Develops and collects performance data from each respective EAP; prepares statistical analyses of program utilization and cost-effectiveness; and highlights EAP trends on an annual basis for the Director, Human Resources Staff, or other Federal entities as may be required.
      6. Develops and performs a Departmentwide EAP needs assessment as required.
    6. Component Heads. Component heads shall ensure that their employees have access to an EAP. For components that directly operate their own EAP, each component head shall issue program policy and procedures in accordance with the Department’s policy, designate an EAP Administrator to manage the program, monitor the EAP Administrator’s performance, ensure that the program is efficiently utilized, and review annual EAP performance reports.
    7. Component EAP Administrator. The Component EAP Administrator, or his/her designee, is responsible for all operations of a Component EAP including: the supervision of EAP counselors and other EAP staff, including collateral duty staff; approving and monitoring related EAP contracts as they relate to the Component’s overall EAP service delivery concept; providing an annual report to the Department’s JMD EAP Administrator based on the Department’s reporting criteria; and ensuring the security of EAPinformation. In addition, the Component EAP Administrator, or his/her designee, whenever possible, shall act as the Contracting Officer’s Technical Representative (COTR) whenever EAP services are contracted out to ensure the confidentiality of the records and to monitor, manage, and evaluate contract performance.
    8. Labor Organizations. Labor organizations are encouraged to inform bargaining unit employees of the utility of the EAP in resolving personal and work-related issues.
    9. Managers/Supervisors. Managers are encouraged to refer employees to the EAP who have performance, conduct, and attendance issues that have not been resolved through supervisory guidance and/or other forms of progressive intervention. Upon learning that an employee has been involved in a traumatic incident, managers are encouraged, when appropriate, to follow the TIM protocol for their respective EAP. Managers are encouraged to display EAP posters and brochures where they can be easily obtained by employees and to periodically schedule EAP awareness presentations.
    10. EEO Counselors. When meeting with an employee and addressing the employee’s concerns and issues, EEO counselors are encouraged to inform the employee about EAP services and benefits, when deemed appropriate.
    11. Advisory Committee. Each EAP Administrator is encouraged to establish and chair an EAP Advisory Committee. The Advisory Committee’s purpose is to ensure that the EAP is meeting its constituents’ needs; report EAP activities and accomplishments; provide a forum for critiquing EAP performance; and plan for future programming.
  4. Organizational Placement. The EAP shall be placed organizationally so that it is free from any conflict of interest, ethical compromise, or the appearance of either. In addition, an EAP Administrator or EAP counselor may not directly supervise, or be supervised by, an individual who has primary operational responsibility for: fitness for duty services, a medical program for determining an employee’s fitness for duty, or a security program.
  5. Service Delivery Model. EAP services may be offered through an internal program by counselors who are Federal employees and/or an external program by contract employees on or off-site. Each component that directly operates its own EAP shall develop written EAP policies and procedures which address all aspects of the EAP operation and related business relationships.
    1. The policies and related EAP contracts of each Department EAP shall allow for coordination and cooperation among the Department’s EAPs to permit provision of services to any Department employee involved in a traumatic incident. (See HRO Part 7, Chapter 2, Traumatic Incident Management).
    2. Session Limits. EAP counseling sessions are limited to eight sessions to provide crisis or short-term counseling, with the goal of stabilizing an individual’s situation, resolving his/her problem(s) whenever possible, and/or referring the individual for appropriate care or services. Employees that require long-term care must be referred and appropriately transitioned out for services, which is the responsibility of the assigned EAP counselor. Appointments or contacts for information and referral, case monitoring or follow-up services are not considered counseling sessions. Additional sessions beyond eight sessions may be provided in those instances where the employee has been involved in a traumatic incident, or it is in the best interest of the government to do so, and it has been approved by the respective component EAP Administrator and/or COTR. However, regardless of the number of sessions allowed, individuals with life-threatening behavior or circumstances may be provided assistance, based on the situation and prevailing professional practice.
    3. In those instances where, by mutual consent of the EAP professional and the employee, or by abeyance or last chance agreement between the employee and manager, the EAP is monitoring the community treatment of an employee for an extended period, such contact shall be in accordance with the terms of the parties’ agreement.
    4. Department EAPs may elect to permit clients who are served by contract EAP counselors to continue counseling beyond the government-sponsored sessions with the same counselor at the employee’s request and expense, by way of their health insurance and/or direct payment by the employee. Each EAP making this election shall ensure that its EAP policy and contract state that this is permitted, and inform the employee of this option and other referral alternatives.
  6. Employee Access and EAP Attendance.
    1. Participation and Job Security. EAP participation is voluntary. An employee may privately access the EAP directly by phone or on a walk-in basis where available. An employee’s job shall not be jeopardized solely for requesting counseling assistance from the EAP. Individuals may be referred to the EAP by supervisors based on work performance or conduct deficiencies.
    2. Supervisory Referrals.
      1. Informal Referrals. A manager or supervisor may suggest that an employee seek EAP services when the employee’s performance, conduct, or attendance has begun to deteriorate, or when the manager or supervisor learns information that suggests that the EAP might be of assistance to the employee.
      2. Formal EAP Referrals. A manager or supervisor may also formally refer an employee to the EAP. A formal EAP referral is in writing, is usually verbally communicated to the employee, and states the performance, conduct, or attendance reasons why the referral is necessary.
    3. Positive Drug Screen Referral. It is mandatory for a supervisor to formally refer an employee to the EAP when notified of a positive drug screen.
    4. Attendance. Employees are not required to seek permission to meet with an EAP counselor when it is on their own time. Employees may meet with an EAP counselor during their workday by taking approved leave or without a charge to leave, with the permission of their supervisors. Employees, who receive approval to visit an EAP counselor during their workday without a charge to leave, shall be allowed travel time to and from the EAP counselor’s office. Employees working irregular duty hours may have their tour of duty modified to accommodate their EAP attendance. Supervisors granting EAP visits during duty hours without a charge to leave, at an employee’s request, may require confirmation of attendance.
  7. Selective Factors for EAP Personnel. The qualifications and credentials for EAP personnel shall be such that they are qualified to carry out EAP services and that they conform to current community standards of training, certification, and licensure.
    1. EAP Administrators and Internal EAP Counselors. Every administrator and counselor shall be an appropriately licensed clinical social worker, professional counselor, psychologist or psychiatrist, or possess a clinical license from a closely allied mental health field with demonstrated substance abuse experience.
    2. Grandfather Provisions and Limitations.
      1. Any EAP administrator or EAP counselor employed by the Department prior to the effective date of this chapter who does not meet the license requirement in paragraph B.7.a. above, is limited to providing EAP program management, assessment, referral, and training, except as provided in paragraph B.7.b.(2) below.
      2. A Department employee performing counseling duties prior to the effective date of this chapter who does not meet the license requirement in paragraph B.7.a., may continue to perform counseling duties provided that he or she is supervised by a licensed mental health professional, acquires at least 12 continuing education units per year of mental health/substance abuse training, and maintains documentation of his/her training attendance.
    3. Contract EAP Counselors. At a minimum, contract EAP counselors shall be licensed mental health counselors as defined in B.7.a. above. Any Statement of Work and related contract issued to provide EAP services to Department employees shall require this licensing standard.
    4. Non-licensed Personnel. Department EAPs may utilize the services of non-licensed personnel (in addition to those described in B.7.b.) as initial program contacts and to provide program information, follow-up, support and referrals. Components employing such personnel must develop an EAP policy that defines standards for these employees. The policy must state that such non-licensed personnel cannot provide counseling services, and must also address their selection process and training. Non-licensed personnel must be supervised by licensed EAP staff. A licensed staff person must always be available when a non-licensed staff person is on duty and could potentially be in contact with EAP clients. Non-licensed personnel shall follow the ethical standards in paragraph B.8. to the extent that they cover all EAP personnel.
  8. Ethical Standards for EAP Personnel. All EAP personnel shall comply with Departmental ethical standards. In addition, licensed EAP administrators and counselors shall comply with the Code of Professional Conduct for their respective disciplines. EAP administrators and counselors who are not licensed shall comply with the most recent edition of the Certified Employee Assistance Professional (CEAP) Code of Professional Conduct as developed by the Employee Assistance Certification Commission. Any interested party who believes that an internal EAP employee has violated the Department’s ethical standards, the Code of Professional Conduct for their respective discipline, or the CEAP Code of Professional Conduct, should report their concerns to the appropriate EAP Administrator or the JMD EAP Administrator to determine what course of action should be taken. Any interested party who is aware of ethics violations committed by an external (contract) counselor should report violations to the appropriate EAP Administrator or the JMD EAP Administrator to determine what course of action should be taken.

    In addition to the CEAP Code of Professional Conduct or the code of professional conduct which may govern a licensed mental health professional, the following ethical standards also apply to all Department EAP personnel:
    1. EAP personnel may not engage in sexual relations with current or former clients, nor may they provide counseling services to a client with whom they have had prior sexual relations.
    2. EAP personnel may not engage in sexual relations with any individual they supervise during the professional relationship.
    Violations of the ethical standards above may result in disciplinary action up to and including removal from Federal service.

C. Documentation and Reporting.

  1. Case Record. A written or computer-based case record shall be established for each EAP client when an EAP counselor conducts an assessment and reviews the case for possible referral or additional services. The client should be made aware of the fact that a record will be created. At a minimum, a case record shall include: the date the case was opened and closed; the client’s address, telephone number(s), date of birth, and gender; primary assessed problem or need; referrals provided; progress notes, including outcomes (e.g., what happened and whether the client was helped, not helped, or it was too soon to tell). A case record may also include a treatment or problem-solving plan, if appropriate, and any other related documents and correspondence generated or acquired by the EAP.

    Progress notes shall be dated; signed by the author after each entry; and sufficiently detailed so that a counselor not familiar with the case can identify the service provided or needed, who provided the service, and the expected outcomes and actual outcomes, if known.
  2. Statement of Client Understanding (SCU). An employee or family member shall sign an SCU before receiving EAP counseling services, when services are provided in person. The form shall state the scope of EAP services that may be offered, the limits of confidentiality, the employee’s responsibility for rehabilitation, and the treatment cost and/or services he or she may require that are beyond the scope of the EAP. The SCU shall also include a statement allowing the EAP to confirm for an inquiring supervisor that an employee has attended an EAP appointment when the employee requests and receives the supervisor’s approval to attend the appointment during work hours without a charge to leave. When counseling is conducted other than in person, the SCU must be reviewed with the employee and the employee must affirm that he/she understands and agrees to the SCU. Such approval should be noted in the employee’s EAP record. Whenever possible, a signed SCU should be processed by fax or mail and secured in the employee’s EAP file. In general, it is not necessary for the SCU form to be completed when an EAP counselor provides management consultation or when assistance is for information and referral services only.
  3. Bio-Psychosocial Assessments. EAPs that offer short-term counseling are required to conduct bio-psychosocial assessments per prevailing practice standards. When a bio-psychosocial assessment is called for, it shall include at a minimum, those items noted in paragraph C.1. above; medical history; current symptoms; current medications; trauma history; personal and family history; occupational history or issues; mental health and chemical abuse history; name of treating counselors/physician(s); financial issues; health insurance data; and treatment or problem-solving plan.
  4. Program Records.
    1. System of Records Notification. EAP records shall be maintained in a system of records that is separate and distinct from any other record system. Each component that maintains such a system of records shall publish a notice in the Federal Register in accordance with the Privacy Act of 1974, as amended.
      1. Internal EAP files. Internal EAP files shall be maintained by component EAP staffs. These files, as well as telephone logs or any other document which may identify a person as an EAP client, shall be secured in a GSA security-approved safe or equivalent as approved by the component's Security Program office. Safes shall be locked when staff members are not in their offices. Access to these files shall be strictly limited to approved EAP personnel only. Only the case number may appear on the file label. The file shall be cross-referenced with a separately secured list with corresponding name and case number. EAP case-sensitive information may only be stored on a computer hard drive or equivalent device if it is an approved system with a firewall and password protection. Systems operating on a component's LAN-based system shall also encrypt stored EAP sensitive data. Floppy disks or equivalent removable data storage devices may be used to store sensitive EAP files. Such storage devices shall be accessible only by a confidential password and secured in a safe as referenced above, in a locked room when not in use.
      2. Contractor EAP Files. Each Component EAP shall ensure that its EAP contracts require their contractors to provide adequate file security to prevent the theft of client files or inadvertent release of personal health information.
    2. Record Security.
    3. Client Access to Records. Clients have a right to access their EAP records. EAP counselors who believe that a client’s access to his or her records could cause a serious misunderstanding or harm to the client should provide assistance in interpreting the records and consult with the client regarding the records.
    4. File Destruction. All client records and other associated materials, calendars, daily logs, and client data, regardless of the storage medium, shall be destroyed three years after the date of the last counseling session, unless a longer retention period is necessary because the EAP has actual notice of an administrative or judicial proceeding specific to the client. In such cases, the records shall be retained for six months after the conclusion of the proceedings. Destruction shall be by EAP personnel. Paper records shall be destroyed through the use of a high-grade shredder. Any electronic storage device that was used to store sensitive EAP information shall be degaussed before it is discarded, transferred, or donated outside the EAP.
  5. Confidentiality. Information concerning a participant’s status with the EAP may not be divulged without the express written consent of the participant or as otherwise permitted by law. All records relating to substance abuse shall be handled pursuant to 42 CFR, Part 2. EAP personnel responding to inquiries regarding an individual’s former or current EAP status shall state that they can neither confirm nor deny an individual’s participation in the EAP without an EAP-executed release. The following transmittals of information are not considered “disclosures” and therefore do not require written releases: (1) transmittals of information between Department EAP counselors when conducting EAP-related business; and (2) transmittals of information between external EAP counselors contracted by the Department to conduct EAP services on behalf of the Department and internal Department EAP counselors.
    1. EAP Client Consent.  In the event an EAP client wishes the EAP to release information to a third party, the affected client shall sign a written consent.  Consent forms shall state the name and title of the person making the disclosure; individuals and/or organizations to whom disclosure is to be made; name of the EAP client; purpose or need for disclosure; extent or nature of information to be disclosed; a statement that consent may be revoked at any time except to the extent that action predicated on the consent has already been taken; a date, event, or condition upon which the consent will expire without express revocation; and the date the consent is signed.  The consent form should also address whether the information being released may be re-released without further consent.
    2. Disclosure without Consent.  EAP records are subject to the Privacy Act of 1974, as amended. Component EAPs must comply with the Privacy Act and publish a system of records notice in the Federal Register regarding their EAP records.  This system of records notice must include routine uses allowing for the disclosure of records in the following circumstances: (1) to appropriate State or local authorities to report, where required under State law, incidents of suspected child, elder or domestic abuse or neglect; (2) to any person or entity to the extent necessary to prevent an imminent crime which directly threatens loss of life or serious bodily injury; (3) to contractors that provide counseling and other services through referrals from the EAP staff to the extent that it is appropriate, relevant, and necessary to enable the contractor to perform his or her counseling, treatment, rehabilitation, and evaluation responsibilities; (4) to any person who is responsible for the care of an EAP client when the EAP client to whom the records pertain is mentally incompetent or under legal disability; (5) any person or entity to the extent necessary to meet a bona fide medical emergency; and (6) to appropriate agencies, entities, and persons when (a) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (b) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department’s efforts to respond to the suspected or confirmed compromise and prevent, minimize or remedy such harm.
  6. Annual Report.  Each Component EAP shall complete an annual (FY) EAP performance report as directed by the JMD EAP Administrator.

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Updated March 22, 2021