Employee Assistance Program (EAP) Policy: US

This Employee Assistance Program (EAP) policy explains how your organization offers confidential, no-cost support for employees (and often their immediate family members) when personal or work-related challenges come up, including stress, mental health, substance use, financial or legal concerns, and work-life balance. While EAPs are widely used as a best practice, they can intersect with federal requirements depending on how the benefit is structured, including the Employee Retirement Income Security Act (ERISA) and related privacy and confidentiality obligations. A clear EAP policy helps set expectations about what the program covers, how to access it, and what "confidential" means in practice, including the limited situations where disclosure may be required by law.

The History Behind Employee Assistance Program (EAP) Policies in the US

Employee Assistance Programs became common in the US when employers started treating substance use and personal crises as workplace risks that could be addressed early, instead of waiting for performance to crater or an accident to happen. Large industrial employers and unions helped normalize employer-sponsored counseling and referral services in the 1970s and 1980s, especially as alcohol and drug policies became more formal and safety expectations tightened. Many HR teams now treat an EAP like other Benefits & Perks, partly because it's a practical support tool and partly because it fits into a broader set of compliance and risk-management routines.

Modern EAPs also grew up alongside privacy and disability rules that changed how employers handle health-related information. The Americans with Disabilities Act of 1990 pushed employers to focus on job performance and reasonable accommodation, and it limited disability-related inquiries and required medical information to be kept confidential in separate files. HIPAA (1996) then set national standards for protected health information when a health plan or provider is involved, and many EAP vendors built their programs around those confidentiality expectations even when HIPAA does not apply to every interaction. States added their own layers, especially around mental health records and substance use treatment confidentiality, so employers increasingly leaned on third-party EAPs to keep boundaries clean.

Benefits regulation also nudged EAP design, even if most people do not think of an EAP as a "plan." ERISA (1974) can apply when an EAP looks like an ongoing employer-sponsored welfare benefit plan, and that risk rises when the program offers more than simple referrals, such as structured counseling benefits or broader care management. The Affordable Care Act era added another pressure point because some EAPs can accidentally trigger group health plan requirements if they provide "significant benefits in the nature of medical care." Employers responded by tightening EAP descriptions, clarifying what the vendor provides, and documenting how the program fits with existing benefit plans and privacy practices.

Which Law is the Employee Assistance Program (EAP) Policy Meant to Comply With?

While there's no federal law requiring an EAP, if yours offers medical or counseling services it might be considered a welfare benefit plan under the Employee Retirement Income Security Act of 1974 (ERISA). This means it could require a Summary Plan Description (SPD). Most EAP providers handle this, but you should confirm.

How to Write a US-Specific Employee Assistance Program (EAP) Policy

• Start with "why" and introduce the concept.
• State who the EAP covers and that it is offered at no cost.
• Describe the types of concerns the EAP is intended to support.
• Summarize the services the EAP provides, including counseling, referrals, and tools.
• Commit to confidentiality and align the policy with applicable privacy and confidentiality laws.
• Explain that participation is voluntary.
• Note the limited situations where information may be disclosed because the law requires it.
• Tell employees how to get more information or connect to the EAP.

When to Include this Policy in Your Employee Handbook

If you have employees in US and you have an EAP, you should include this policy in your employee handbook for US-based employees, unless you handle EAP information distribution elsewhere. Even then, it may be helpful for employees to include a short blurb about it in your handbook.

29 U.S. Code § 1024 (b) of ERISA states: 

1. The administrator shall furnish to each participant, and each beneficiary receiving benefits under the plan, a copy of the summary plan description and all modifications and changes referred to in section 1022(a)(1) of this title ...
   1. within 90 days after he becomes a participant, or (in the case of a beneficiary) within 90 days after he first receives benefits, or
   2. if later, within 120 days after the plan becomes subject to this part.

Other Considerations

None.

Exceptions

None.