Employee Assistance Program/Penalty for Not Completing Counselling?

susan macias

Question: an employee is required to go to EAP in lieu of being fired after a failed attempt to steal money from employer's cash register. He attended a session and then was referred for out-patient counseling. He failed to attend out-patient sessions & was asked not to return unless he was serious about completing the program. The supervisor wants to terminate. Would a termination on these grounds be legal? Thanks.

Down_the_Middle

It would be appropriate in my book. Presumably you had the employee sign an acknowledgement that his satisfactory completion of the EAP sessions was a condition of continued employment and failure to do so would result in immediate termination. Even if you didn't have him sign such a document, I'd clip his strings and move on. (I'd find it hard to choose EAP for an "attempted theft from the cash register" to begin with.)

System

Is this psychological counseling you want him to take? If so, I'm afraid you might be creating a risk of him suing your company under the ADA. If he has some sort of mental condition that caused him to steal, that could be an ADA disability. Then you'd need to try to accommodate him (keep him away from the cash drawer?)

If it's not a disability (or if he doesn't have any mental condition at all), then he might be able to sue if you "regard" him to be disabled. In other words, you incorrectly believe him to be disabled and you discriminate against him because of this non-disability. Here's a good article on the topic:
[url]http://www.hrhero.com/q&a/eap.shtml[/url]

I'd feel better focusing on his conduct: He committed a serious violation of company policy, and how can he assure you it won't happen again? I wouldn't demand that he attend counseling. But put the burden on him to prove to you somehow that he's trustworthy enough to keep his job.

James Sokolowski
Senior Editor
M. Lee Smith Publishers