HR Strange But True

New Testimonial Privilege for Employee Assistance Programs
Topic: Counseling Services/ EAPs
Type: Letters

Senate Bill 19, effective in mid-January, bars employee assistance professionals from testifying about any communications with employee assistance program (EAP) clients. The issue may arise in
the context of litigation in which an employee or other litigant may seek EAP records or the testimony of an EAP professional.

Professionals covered. The new Ohio law applies to employee assistance professionals who are either certified by the employee assistance certification commission (an arm of the national professional association for EAP counselors), or who have education, training, and experience in providing workplace services to employees and their dependents to resolve workplace or personal problems that affect employee productivity.

Exceptions. The new testimonial privilege does not apply to any of the following:

  • Criminal prosecutions involving murder, manslaughter, or homicide
  • Communications that reveal the contemplation or commission of a crime
  • A communication that is made by a client who is an unemancipated minor, or an adult who has been found incompetent, and that indicates that the client was the victim of a crime or abuse
  • A civil or criminal malpractice action brought against the employee assistance professional
  • When the employee assistance professional has the express consent of the client or the client's legal representative (if the client is deceased or disabled)

Employer implications. Confidentiality is a key component of an EAP, and EAP professionals, like psychiatrists or social workers, play an important role in increasing access to mental health treatment by assisting those who could otherwise not afford psychotherapy. Without them, employees would otherwise go untreated. A growing number of states have passed legislation, like this new Ohio law, protecting EAP communications from being aired in the public forum of a court case. Those states include neighboring Indiana as well as Connecticut, New Hampshire, Oregon, Rhode Island, and Tennessee.

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