Employers can be held liable for unprofessional EAP counsellors

Tim Hortons not the best setting for private sessions, says arbitrator
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 09/04/2015

A recent arbitration in Nova Scotia involving an EAP counsellor serves to highlight the role and responsibilities of these professionals — and their relationship with employers and employees.

The arbitrator concluded there were breaches of employee privacy and confidentiality, along with unprofessional behaviour.

From an EAP point of view, employers trust the people they retain, but these professionals may not be as competent as they otherwise ought to be, according to Ronald Pink, a lawyer at Pink Larkin in Halifax who appeared for the union in the April arbitration.

“There are real governance issues from a human resources management process here that need to be dealt with,” he said. “These are all complex workplace issues and... I have lots of sympathies for employers because it costs a lot of money to do all this and so we should be just making sure we get it right.”

The dispute

Since 2007, the Halifax Employers Association (HEA) had contracted for EAP services with Medavie Blue Cross, which itself subcontracted to Shepell-FGI Consultants. As part of a monitored referral procedure, counsellors would assess each employee referred to them, pursuant to a policy on employee safety and assistance (and its substance abuse program and structured relapse protection program). 

But the Halifax Longshoremen’s Association, Local 269, filed a grievance challenging the administration of the substance abuse program and, in particular, the referral of employees to “Counsellor J.”

The union felt Counsellor J lacked the proper qualifications, experience, expertise and competence to fill the role of EAP co-ordinator. The HEA, however, said the counsellor was qualified — citing several of his qualifications — and said the union did not cite any legislative, regulatory or medical basis for its position Counsellor J must be a specialist in addiction counselling. 

The union also maintained the counsellor improperly shared intimate and personal information about employees and went beyond employee consent. For example, he reported to the HEA about one employee’s recent cancer diagnosis and lung surgery.

But the HEA said privacy case law can allow for the collection of sensitive personal information if a worker occupies a safety-sensitive position. And the employer was entitled to know of circumstances that could trigger a relapse in an employee with a dependency.

The union also felt the counsellor was unprofessional in conducting sessions in his living room and breached employee privacy by holding sessions at public locations such as Tim Hortons.

Arbitrator steps in

When it came to the question of the counselor’s qualifications, arbitrator Michel Picher said there were no provisions in the province’s acts that would prohibit the counsellor from providing the services he did with the qualifications he possessed, while also stressing his 25 years of experience.

But there are no regulations to regulate an addictions practitioner’s competencies as there are for social workers, physicians or nurses, said Jeff Willbe, interim executive director of the Canadian Addiction Counsellors Certification Federation (CACCF).

“Anybody can call themselves an addictions counsellor… There’s a hodge podge out there and this needs to be formalized, regulations; let’s define… what level of competency, what level of knowledge and skills are required to practise and call yourself an addictions counsellor, practitioner or therapist.”

Since the industry is unregulated, a person could be suspended or have her certification taken way, but it doesn’t stop her from practising, he said.

“If (counsellors) haven’t had training in working in addictions, they may not be able to deal with what can sometimes be some pretty complex health and human issues.”

There is a need for greater clarity around the role of and qualifications of professional counsellors, said Pink. It’s about making sure those who do have the power are properly trained, and there’s some societal and regulatory authority.

“It has become and will become very shortly a very significant profession and... if you’re doing counselling of any sort, small c or capital C, you should be regulated ... so there’s a supervisory body.”

There are different types of training and programs that therapists can go through to get that specialization, according to Eric Rubel, Toronto-based national director of clinical services and organizational health at EAP provider Aspiria.

“Some go through a very formal academic program, some go through more shorter-term addictions training,” he said. “You do want to have a specialization in addictions when you treat addictions, for sure, but how do you define specialization? Is specialization defined as someone who does a three-month course in addictions versus someone who does a three- or four-year degree in psychology with a focus on addictions?”

When it came to the decision to inform the employer about the cancer situation, this was a serious breach of confidentiality and privacy, said the arbitrator.

“To tie the disclosure of Employee M’s diagnosis of cancer and surgery to concerns for the potential for relapse, standing on its own, is simply too facile to justify the disclosure and… violates the counsellor’s obligation of confidentiality towards the employee entrusted to him.”

It’s a tricky area, since the company is paying for the EAP, said Willbe, but “unless there is a real health and safety issue because the person’s working on very sensitive job, confidentiality should rule and if it is not, I think the employee has a right, and the union, a right to complain.... I’m going to relapse if I can’t trust the person I went to for help.”

Counsellors want to support their clients but they have to keep in mind the employers’ interests as well, said Rubel.

“That’s not to say that confidentiality or all that therapist-client confidentiality should be thrown out the window — that’s absolutely not the case,” he said. 

“Sometimes, it can be difficult, it can be challenging, and what needs to happen is a good clinician and good clinical department supporting that counsellor, like the EAP-type department, would be able to support that counsellor and help as a team to determine what can be or what should be revealed to the employer.”

If it gets out to the rest of the staff that information is being disclosed to the employer that really shouldn’t be, that’s going to take away from the integrity of the EAP and a lot of confidence will be lost both on the part of the employee and employer, said Rubel.

As for holding counselling sessions in a private home, that is acceptable and common in professional services, said Picher. But holding sessions at public locations was “expressly contrary” to confidentiality requirements.

“Counsellor J did fail in the duty of confidentiality and privacy which he owed to all of the employees in his care by placing himself and employees he was counselling in a variety of public places where the employees were exposed.”

If an employee ever is unhappy with his counsellor, he can request another, said Rubel.

“The therapeutic relationship is really important so if a client... meets the counsellor and it doesn’t seem that it’s a good fit for him or her, then we will be more than happy to provide another counsellor to replace the other one,” said Rubel, adding some people prefer older or younger therapists, or male or female ones. 

“Whenever possible, we try to match those requests.”

Employer’s liabilities

In the end, it appears the employer only became aware of some of the allegations at a grievance meeting in April 2014, found the arbitrator.

“Be that as it may… it cannot be seriously argued that the HEA can disclaim all responsibility for the actions of Counsellor J on the basis that he did not specifically know of them or endorse them,” said Picher. Despite the contracts with Medavie and Shepell-fgi, Counsellor J was effectively chosen by the HEA, he said.

“The employer cannot disavow or escape responsibility for the actions of its chosen agent and must bear liability for any violation, in the course of his duties, of the rights of employees in the bargaining unit for which he is responsible.”

But while there were instances where the privacy and confidentiality rights of employees were denied, the measures of damages must be kept in “reasonable perspective,” he said.

“There is no medical evidence or other documentary material filed by the union before the arbitrator to suggest or confirm that the employees affected suffered substantial medical impacts, such as clinical depression, by reason of their dealings with the counsellor.”

As a result, for the violation of their rights of privacy and confidentiality, one employee was to be compensated $5,000 and another $2,500 while a third was to receive $1,500 for unprofessional communications. 

And any reports from the counsellor containing inappropriate personal information, such as a private medical diagnosis, were to be purged.

“I’m not faulting employers because this is not their specialty, they go to a legitimate, recognized provider and say, ‘Can you provide me with an EAP?’ and they trust it… but no one did any checking in this case,” said Pink. 

“In the end, the employer said, ‘We won’t use him anymore’ so it’s all kind of moot in the end, but it’s a pretty good shot across the bow as to how these things ought to work overall.”

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