944 EAP Counseling Records

944.1 Restricted Information

Restricted information is information with limitations on its access within the Postal Service and its disclosure outside the Postal Service consistent with the following federal laws:

  1. The Privacy Act of 1974, as amended.
  2. The Health Insurance Portability and Accountability Act (HIPAA) of 1996.
  3. The Public Health Service Act of 1944, as amended (see 944.4).

944.2 Policy

Information about EAP counseling participants is restricted information, which must be held in confidence and is subject to disclosure only as described in 944.4 and pursuant to the provisions of the federal laws listed in 944.1.

944.3 Custodians of Records

944.31 Postal Service Providers

When EAP services are provided by Postal Service employee counselors, counseling records are maintained by the counselor within the Privacy Act system of records, USPS 120.140, Personnel Records — Employee Assistance Program (EAP) Records. These records are subject to Postal Service policy and regulations, as follows:

  1. Provisions of the Privacy Act as set forth in:
    1. Title 39 CFR 266, Privacy of Information.
    2. Handbook AS-353, Guide to Privacy, the Freedom of Information Act, and Records Management (including the appendix, Privacy Act System of Records).
  2. Provisions of HIPAA regarding access, disclosure, amendment, and maintenance of records.
944.32 Private Providers

When EAP services are provided through an interagency agreement or a private vendor, the following requirements apply:

  1. Each EAP counseling service provider is responsible for maintaining records on participants.
  2. These counseling records are the property of the primary provider and maintained in a system of records.
  3. The primary provider must maintain policies and procedures for safeguarding the confidentiality of client data and files and may be liable under the law for improper release of such information.
  4. The primary provider agrees to assert any privilege allowed by law and to defend vigorously Postal Service and employee rights to confidentiality.

944.4 Disclosure

944.41 General
944.411 Usual Recipients

Information identifying substance abuse program participants, whether or not such information is recorded, may be disclosed as follows:

  1. To medical personnel to the extent necessary to meet a bona fide medical emergency involving the EAP participant.
  2. To qualified personnel, with the express written authorization of the vice president of Employee Resource Management, for purposes of conducting scientific research or program audits or evaluation. However, under no circumstances may any personally identifiable information be disclosed in the resulting evaluation, research, or audit reports.
  3. To a court, under the following circumstances:
    1. When authorized by a court order upon showing of good cause, such as when necessary to protect against an existing threat to life or threat of bodily injury, or in connection with the investigation or prosecution of a crime.
    2. In litigation or an administrative proceeding when authorized by the trier of fact, when the EAP participant offers testimony or other evidence pertaining to the content of his or her EAP participation. Counsel should be contacted for assistance in evaluating the court order and in determining the extent to which information must be released.
  4. To any person when the EAP participant gives prior written consent to disclose information. This consent specifies the nature and scope of the topics to be released, to whom information is to be released, the purpose of the disclosure, and the date on which the consent terminates.
  5. To a person in any situation in which the EAP counselor has a duty to warn.
  6. To an expert, consultant, or other individual who is under contract to the Postal Service to fulfill an agency function, but only to the extent necessary to fulfill that function, and in accordance with the Privacy Act restrictions of 39 CFR 266.6.
944.412 Limitation of Disclosure

In all cases cited in 944.411, only information that is absolutely necessary to satisfy the recipient’s business or medical need is to be disclosed.

944.42 Criminal Activity
944.421 EAP Records

EAP counseling records or personnel may not be used to initiate or substantiate any criminal charges against an EAP participant or to conduct any investigation of a participant, except as authorized by a court order for good cause.

944.422 Limitation of Confidentiality

If an employee who is an EAP counseling participant reveals the commission or intended commission of serious criminal activity, the EAP counselor is not prohibited from disclosing that information so long as the employee is not identified as an EAP counseling program participant. Confidentiality does not apply in any of the following cases:

  1. A crime is committed on EAP premises or against EAP counselor personnel, or a threat to commit such a crime is made.
  2. Incidents occur in which information must be reported as required by state law; for example, mandatory reporting of child abuse and/or neglect (elder/spouse abuse in some states).
  3. For a disclosure that may be required by elements of the criminal justice system because they have referred employees who are EAP participants.