Many organizations, including hospitals and other health care organizations, are embracing peer support networks to tackle the extreme levels of burnout being felt by many employees in the workplace. Employees can get trained or certified as Mental Health Fist Aid responders to serve as a peer support person. When done right, peer support can be very helpful to the mental wellbeing of employees. See e.g., https://www.mhanational.org/peer-workforce and https://journals.sagepub.com/doi/pdf/10.1177/2165079919873934.
However, inserting a peer support program into a workplace wellness program does not exempt the program from complying with wellness program laws. This includes the Americans with Disabilities Act (ADA). Peer support programs may ask for employee health information. The ADA term for health information collection is “disability-related inquiries.” According to the Equal Employment Opportunity Commission (EEOC) (“EEOC Guidance”), the federal agency that oversees compliance with the ADA, disability-related inquiries may include the following:
- asking an employee whether s/he has (or ever had) a disability or how s/he became disabled or inquiring about the nature or severity of an employee’s disability;(20)
- asking an employee to provide medical documentation regarding his/her disability.
- asking an employee’s co-worker, family member, doctor, or another person about an employee’s disability.
- asking about an employee’s genetic information;(21)
- asking about an employee’s prior workers’ compensation history;(22)
- asking an employee whether s/he currently is taking any prescription drugs or medications, whether s/he has taken any such drugs or medications in the past, or monitoring an employee’s taking of such drugs or medications;(23) and,
- asking an employee a broad question about his/her impairments that is likely to elicit information about a disability (e.g., What impairments do you have?).(24)
One can imagine a scenario where an employee decides to consult with a peer support specialist, who may also be a co-worker, about their feelings of stress and burnout. In the conversation, the employee may reveal information about diagnosed mental health conditions, or prescription drug use. Is the employee’s revelation of that information legal under the ADA? Well, it depends.
The ADA permits “disability-related inquiries” of employees in limited situations: 1) when it is job-related and consistent with business necessity; or 2) when it is part of a voluntary wellness program. Disability-related inquires may be “job-related and consistent with business necessity” when an employer has a reasonable belief, based on objective evidence, that: 1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or 2) an employee will pose a direct threat due to a medical condition. EEOC Guidance. So, in the peer support context, did the peer support person get involved with the employee because the employee was displaying behavior indicating the employee was impaired and could not perform essential job functions? If so, the peer support person’s inquiry may fall into this exception of the ADA.
Or did the employee come to the peer support person to talk, but then the peer support person pressured the employee to reveal sensitive health information during the conversation? This interaction may have violated the ADA’s requirement that health information collection be “voluntary.”
Another potential concern about using peer support programs is what to do with information learned from peer support programs that may cause a danger in the workplace. What if the information revealed, whether voluntary or not, raises alarm bells to the peer support person? What confidentiality obligations does the peer support person have? Peer support individuals who are also co-workers of the person seeking peer support face a conflict of interest and creates liability for the employer. Such situations raise questions of whether the peer support individual should disclose information to protect clients and others in the organization, versus keeping the trust of the individual who disclosed the alarming information. Unlike licensed professionals, who often have ethical codes and guidelines to navigate such conflicting situations, peer support individuals who are working in a dual capacity of peer supporter and employee of an organization may not have clear guidance on how to handle such situations. As a result, organizations should consider whether it is a good idea to use fellow employees as peer supporters instead of a third-party that can absorb some of that liability should a dangerous situation occur. At the very least, the organization should have detailed policies and procedures on how to handle such conflicting situations.
Of course, peer support should not replace licensed health care or mental health therapy and the services that are often available through Employee Assistance Programs (EAPs).
This blog only raises some of the legal issues that can occur with peer support programs. For a full evaluation of your peer support program, please contact us at www.wellnesslaw.com.