HR Order DOJ 1200.4: Part 7, Chapter 7-1, Employee Assistance Program

A. References.

1. Policy

   It is the policy of the Department of Justice (DOJ or Department) to provide its employees and their spouses,significant others, and dependent children under the age of eighteen, access to an Employee Assistance Program (EAP) to offer resources to address work-related problems, traumatic incidents, substance use disorder, mental health concerns, marital or family problems, and financial or other personal problems.  As personal, financial, and health concerns may interfere with an employee’s performance, conduct, and attendance, the EAP is an appropriate resource to consult and receive referrals to services.

   1. Employee Assistance Program Services
      1. Component EAPs must define the scope of services, including whether the program provides after-hours emergency services and eligibility.
      2. 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.
      3. EAPs must provide short-term substance use disorder (SUD) counseling services for requesting employees and for employees who have been referred due to a positive drug test.  EAPs will provide substance use disorder prevention education and will coordinate their services with their Drug-Free Workplace Program (DFWP).  SUD education must include information regarding component DFWP policy and testing procedures, and the negative effects drugs and alcohol can have on an employee or family member.
   2. Confidentiality
      1. EAP counseling, communications, and information and referral services may be in person, by telephone, or through video conferencing (e.g., Microsoft Teams). Communications between EAP staff and employees may not be conducted by email, unless the employee consents to send and receive information to and from the EAP by e-mail.
         1. Consent must be documented and retained in the employee's EAP file located on a case management system that meets all security standards.
         2. Before employees give consent, they must be informed that there is no expectation of privacy regarding such communication or information stored within the Department's computer system.
      2. In those instances when, by mutual consent of the EAP clinician and the employee, the EAP is monitoring the community treatment of an employee for an extended period, contacts between the EAP clinician and the case manager overseeing external treatment must be supported by a written consent form signed by the employee.
      3. 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 use must be handled pursuant to 42 C.F.R. Part 2.  EAP personnel responding to inquiries regarding an individual’s former or current EAP status must state that they can neither confirm nor deny an individual’s participation in the EAP without an EAP-executed release.
      4. The following transmittals of information are not considered “disclosures” and do not require written releases:
         1. Transmittals of information between Department EAP clinicians when conducting EAP-related business; and
         2. Transmittals of information between internal Department EAP clinicians and external EAP clinicians contracted by the Department to conduct EAP services on behalf of the Department..
      5. In the event an employee wishes the EAP to release information to a third party, the affected client must sign a written consent.  Consent forms must:
         1. State the name and title of the person making the disclosure;
         2. Individuals and/or organizations to whom disclosure is to be made;
         3. Name of the employee;
         4. Purpose or need for disclosure;
         5. Extent or nature of information to be disclosed;
         6. A statement that consent may be revoked at any time except to the extent that action predicated on the consent has already been taken;
         7. A date, event, or condition upon which the consent will expire without express revocation; and
         8. The date the consent is signed.
         9. The consent form should also address whether the information being released may be re-released without further consent.
   3. Organizational Requirements
      1. An EAP must be placed organizationally so that it is free from any conflict of interest, ethical compromise, or the appearance of either.
      2. 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 personnel security program.
      3. EAP services may be offered through an internal program by clinicians who are federal employees and/or an external program by contract employees on or off-site. Each component that directly operates its own EAP must 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 of the Department’s component EAP must allow for coordination and cooperation among the Department’s EAPs to permit provision of services to any Department employee involved in a traumatic incident.
   4. Counseling
      1. Session limits for EAP services are determined by each component and are subject to variation based on individual component policies and fiscal resources.  EAP sessions typically range from six to eight per client, with each session lasting between 50 minutes to one hour; however, both the number and duration may be adjusted based on individual needs and program flexibility.  EAP counseling sessions are designed to provide crisis or short-term counseling, with the goal of stabilizing an individual’s situation, resolving the employee’s problem(s) whenever possible, and/or referring the individual for appropriate care or services.
         1. The assigned EAP clinician is responsible to refer and appropriately transition out for services those employees who require long-term care..
         2. Appointments or contacts for information and referral, case monitoring or follow-up services are not considered counseling sessions.
         3. With the approval of the respective component EAP administrator and/or contracting officer, EAP clinicians may provide additional sessions beyond the number of sessions typically provided where the employee has been involved in a traumatic incident, or it is in the best interest of the government to do so.
         4. Individuals engaged in life-threatening behavior or who are in similar circumstances may be provided additional assistance based on the situation and at the discretion of the assigned EAP clinician, regardless of whether the individual has exhausted the number of allowable sessions.
         5. Department EAPs may elect to permit clients who are served by contract EAP clinicians to continue counseling beyond the government-sponsored sessions with the same clinician at the employee’s request and expense, by way of their health insurance and/or direct payment by the employee.  Any EAP making this election must ensure that its EAP policy and contract state that this is permitted and inform the employee of this option and other referral alternatives.
   5. Employee Access and Employee Assistance Program Attendance
      1. EAP participation is voluntary.  An employee may privately access the EAP by phone or on a walk-in basis where available.
      2. An employee may not be subject to discipline solely for requesting counseling assistance from the EAP.
      3. Individuals may be referred to the EAP by supervisors based on work performance or conduct deficiencies.
         1. 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. A manager or supervisor may also formally refer an employee to the EAP.  A formal EAP referral is in writing, and states the performance, conduct, or attendance reasons why the referral is necessary.
      4. It is mandatory for a supervisor to formally refer an employee to the EAP when the supervisor is notified of a positive drug screen.
      5. Employees may meet with an EAP clinician during their workday by taking approved leave. Supervisors may also approve an employee’s attendance at an EAP without a charge to leave.
         1. Employees who receive approval to visit an EAP clinician during their workday without a charge to leave must also be allowed travel time to and from the EAP counselor’s office, if applicable.
         2. Employees working irregular duty hours may modify their tour of duty to accommodate their EAP attendance.
         3. Supervisors granting EAP visits during duty hours without a charge to leave, at an employee’s request, may require confirmation of attendance.
         4. Employees are not required to seek permission from a supervisor to meet with an EAP clinician when it is on their own time.
   6. Employee Assistance Program Personnel Requirements
      1. All EAP personnel who are hired by the Department must be qualified to carry out EAP services. Such qualifications must conform to current community standards of training, certification, and licensure.
      2. Every administrator and clinician must 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.
      3. Contract EAP clinicians must be licensed mental health counselors.  Any Statement of Work and related contract issued to provide EAP services to Department employees must require this licensing standard.
      4. Department EAPs may utilize the services of non-licensed personnel 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.
         1. Any EAP administrator or EAP clinician employed by the Department prior to the effective date of this directive who does not meet the license requirement above, is limited to providing EAP program management, assessment, referral, and training.
         2. The policy must state that such non-licensed personnel cannot provide counseling services and must also address their selection process and training. The provision of services by non-licensed personnel requires oversight by appropriately licensed EAP staff in accordance with applicable standards.
      5. When non-licensed staff are on duty, a licensed professional must be immediately accessible for consultation or supervision.
      6. All EAP personnel must comply with Departmental ethics rules.  In addition, licensed EAP administrators and clinicians must comply with the Code of Professional Conduct for their respective disciplines.  EAP administrators and clinicians who are not licensed must 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.
      7. Any interested party who believes that an internal EAP employee has violated the Department’s ethics rules, 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 Justice Management Division (JMD), EAP Administrator.  Any interested party who is aware of professional conduct violations committed by a contract EAP clinician should report violations to the appropriate EAP Administrator or the JMD EAP Administrator.
      8. 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.
      9. Any violation of the ethical standards outlined above may lead to disciplinary measures, including potential removal from federal service, and will be reported to the individual’s state licensing authority.
   7. Recordkeeping
      1. EAP client records are maintained in accordance with the Privacy Act of 1974, as amended and are covered under System of Records Notice DOJ-015 (Department of Justice Employee Assistance Records), published at 77FR5570. 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:
            1. The Department suspects or has confirmed that the security or   confidentiality of information in the system of records has been compromised;
            2. 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
            3. 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.
      2. A written or computer-based case record must be established for each EAP client when an EAP clinician 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 must include the date the case was opened and closed; the client’s address, telephone number(s), date of birth, and sex; 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 must 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.
          
      3. All individuals receiving EAP services in person must review and sign a Statement of Client Understanding (SCU) before receiving EAP counseling services.  The form must 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 must also include a statement allowing the EAP to provide confirmation to 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.
      4. When counseling is conducted other than in person (i.e., by telephone or videoconference), the SCU must be reviewed with the employee and the employee must affirm that they understand and agree to the SCU.  Such approval should be noted in the employee’s EAP record.  Whenever possible, a signed SCU should be processed by e-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 clinician provides management consultation or when assistance is for information and referral services only.
      5. EAPs that offer short-term counseling are required to conduct bio-psychosocial assessments only if deemed appropriate.  A bio-psychosocial assessment is appropriate when a comprehensive understanding of an individual’s biological, psychological, and social factors is needed to effectively evaluate their situation and guide treatment or support planning. When a bio-psychosocial assessment is called for, it must include at a minimum, medical history; current symptoms; current medications; trauma history; personal and family history; occupational history or issues; mental health and substance use disorder history; name of treating counselors/physician(s); financial issues; health insurance data; and treatment or a problem-solving plan.
      6. EAP records must be maintained in a system of records that is separate and distinct from any other record system.
      7. Internal EAP files must be maintained by component EAP staff.  All physical files, to include telephone logs or any other document which may identify a person as an EAP client, must be secured in a U.S. General Service Administration security-approved safe or equivalent as approved by the component's Security Program office.  Safes must be locked when staff members are not in their offices.  Access to these files must be strictly limited to approved EAP personnel only.  Only the case number may appear on the file label.  The file must be cross-referenced with a separately secured list with corresponding name and case number.  EAP case-sensitive information may only be stored on a case management system that maintains robust practices in vulnerability management, incident response, audit logging, encryption, identity and access control, and continuous monitoring.
      8. Each component EAP must 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.
      9. 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.
      10. EAP records are to be maintained under General Records Schedule 2.7, Employee Health and Safety Records. All client records and other associated materials, calendars, daily logs, and client data, regardless of the storage medium, must 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 must be retained for six months after the conclusion of the proceedings.  Destruction must be by EAP personnel. Paper records must be destroyed through the use of a high-grade shredder.
      11. Each component EAP must complete an annual fiscal year EAP performance report as directed by the JMD EAP Administrator, which is due each year on November 1st.
2. Roles and Responsibilities
   1. Assistant Attorney General for Administration.  Establishes Department policy for the EAP program. 
   2. Deputy Assistant Attorney General for Human Capital, Security, and Administration.  Designates Component EAP Administrators, other than the JMD EAP Administrator.
   3. Director, Human Capital Staff, Justice Management Division.  Designates the JMD EAP Administrator, who also provides EAP services for Department components, as may be appropriate.  Advises the Deputy Assistant Attorney General for Human Capital, Security, and Administration on matters related to component EAP performance.
   4. Deputy Director, Human Capital Staff, Justice Management Division.  Oversees the work of the JMD EAP Administrator.  Provides guidance and support for Departmentwide EAP services.
   5. Program Manager, Employee Assistance Program, Human Capital Staff, Justice Management Division.  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 and other components where cost effective or needed by the Department.
      3. Coordinates and develops Department wide 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 Capital Staff, or other federal entities as may be required.
      6. Develops and performs a Department-wide EAP needs assessment as required by the Assistant Attorney General for Administration.
   6. Heads of Components.  Must ensure that their employees have access to an EAP.  For components that operate their own EAP, each Head of Component must issue program policy and procedures in accordance with this policy statement, 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 Employee Assistance Program Administrator.  The Component EAP Administrator is responsible for all operations of a Component EAP including: the supervision of EAP clinicians 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 EAP information.  In addition, the Component EAP Administrator, or his/her designee, whenever possible, must act as the Contracting Officer’s Technical Representative whenever EAP services are contracted out to ensure the confidentiality of the records and to monitor, manage, and evaluate contract performance.
   8. Supervisors. Supervisors 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.  Supervisors are also required to refer employees who have a positive drug test to the DFWP.  Upon learning that an employee has been involved in a traumatic incident, supervisors are encouraged, when appropriate, to follow the TIM protocol for their respective EAP.  Supervisors are encouraged to display EAP posters and brochures where they can be easily obtained by employees and to periodically schedule EAP awareness presentations.
   9. Equal Employment Opportunity Counselors. Counselors are encouraged to inform employees about EAP services and benefits during Equal Employment Opportunity Counseling, when deemed appropriate.

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