In certain cases (for example, with potential workplace violence
issues), you have the option of not permitting the individual to return
to work without a ‘‘return to work release’’ from a licensed
healthcare practitioner. Note that such leaves are typically paid
through the period of initial evaluation. Beyond that, the employeemust use accrued time off to be compensated while receiving further
treatment.

Still, be sure to discuss ‘‘formal’’ EAP referrals with legal counsel
before initiating the process. Recent case law shows that plaintiff
attorneys have argued that formal EAP referrals have created burdens
for employers under the Americans with Disabilities Act
(ADA). Specifically, these attorneys have argued, on the basis of a
mandatory EAP referral, that the employers did indeed perceive that
their clients were disabled. (The ADA protects individuals who are
perceived as having a disability.)

Furthermore, you may strongly suggest that an individual contact
the EAP, but you shouldn’t mandate that he attend by threatening
termination. After all, the employer-employee relationship blurs
when you mandate that a worker see a mental healthcare professional
outside the workplace. As a matter of fact, such a requirement
can even give rise to claims of invasion of privacy in certain states.
You’ll probably be better off making a note in your log that the
worker refused your invitation to speak with the EAP counselor and
leaving it at that.

Taken From : The Hiring and Firing Quention and Answer Book