By offering an EAP to employees, an employer could potentially face legal liability for actions taken either by internal EAP counselors or by outside EAP vendors. As a result, the employer should make sure that its liability insurance covers actions taken by both internal and external EAP counselors.

Employees who use the EAP should be able to expect that EAP records remain confidential and private.

Liability concerns. Potential employer liability in connection with an EAP might arise under the following types of situations:

• malpractice, such as if an EAP counselor or a medical professional or facility to whom the employee was referred makes a medical mistake;
• misdiagnosis, such as if an EAP counselor directs an employee to a wrong or inappropriate type of treatment;
• negligent referral, such as if an EAP counselor refers an employee to an incompetent or unlicensed health care provider;
• defamation or other harm to an employee's reputation, such as erroneously calling an employee an alcoholic or drug abuser; and
• inappropriate relationships, such as sexual involvement between an EAP counselor and an employee.