An assistance program can help after an incident, but it has its own rules.
After an injury, assault or near miss, employees often need counseling or support. Employee assistance and wellness programs can help, and they come with plan, privacy and nondiscrimination rules that employers should know before they roll one out.
What the rules say.
Here is the plain-language version. It is meant to inform, not to advise legally, and the rules underneath it do get amended.
Wellness Program Nondiscrimination
Health-contingent wellness programs tied to a group health plan must follow federal nondiscrimination rules, including limits on reward size and requirements to offer reasonable alternatives.
ADA Limits on Medical Inquiries
Wellness programs that ask health questions or require exams must be voluntary under the ADA, and the information must be kept confidential.
Assistance Programs as Plans
An assistance program that provides medical or counseling benefits may itself be an ERISA welfare plan, which can bring documents and reporting duties.
How this plays out.
Employers often add counseling sessions after a serious event, then discover that the arrangement has plan paperwork, privacy requirements or tax consequences. A short review before launch is worth it.
Participation should be voluntary and the employer should not receive an individual’s counseling details. Aggregate usage reports are generally fine; anything that identifies who sought help is not.
Pair the benefit with a communication plan. Employees only use support they know exists, and managers should know how to point someone to it without asking about health details.
Where this shows up in your plan.
Plan Design and Behavioral Health
Check how the group health plan covers behavioral health visits so the assistance program and plan complement each other.
Privacy Walls
Keep counseling and claims data out of personnel, discipline and safety files.
Plan Documents and Disclosures
If the program is a plan, document it and describe it in plan materials.
Setting it up.
Decide what support you want to offer after an incident, such as sessions, referrals or a hotline.
Ask your carrier or vendor how the program interacts with the group health plan.
Make participation voluntary, and confirm no one receives individual-level reports.
Write a one-page notice that explains the program, who is eligible and how to reach it.
Review the program with counsel if it includes rewards, health screenings or surcharges.
Mistakes to avoid.
Penalizing employees who decline to participate in a health screening.
Letting a manager ask for details about why someone used the program.
Offering the program only to some employees without a documented, lawful reason.
Forgetting that the program may need to be described in plan documents.
Other rules employers work with.
MIOSHA Workplace Safety and Workplace Violence Employer Guide
The central guide ties this page to its five sibling topics.
ADA and Religious Accommodations for Michigan Employers
Medical privacy and accommodation duties.
Summary Plan Descriptions and Plan Documents
Document benefit programs correctly.
Laws and Rules Referenced
Health status nondiscrimination, 29 U.S.C. 1182 — ERISA rule behind wellness program limits.
Voluntary medical programs, 29 CFR 1630.14 — ADA rules on medical examinations and wellness.
ERISA coverage, 29 U.S.C. 1002 — Definition of employee welfare benefit plan.
Quick answers.
Here are condensed answers to what we hear from employers most, each connecting onward to the full guide.
Can I require employees to use counseling after an incident?
Generally the support should be voluntary. Required medical examinations raise ADA issues, so talk to counsel before requiring anything health-related.
Does the employer see who used the program?
It should not. Most programs report only totals so that individual use stays private.
Is an assistance program an ERISA plan?
It can be. If it provides medical or similar benefits, plan documents and reporting may apply.
More guides in this series.
MIOSHA State Plan Coverage of Private Michigan Employers
A companion guide in the same series.
MIOSHA Injury and Illness Recordkeeping and Reporting Rules
A companion guide in the same series.
General Duty Clause and Workplace Violence Prevention for Michigan Employers
A companion guide in the same series.
Medical Leave and Group Health Coverage After a Work-Related Injury
A companion guide in the same series.
Safety Complaint Retaliation and Benefit Plan Decisions
A companion guide in the same series.
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