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In a surprise to presumably no one, Washington now explicitly protects the confidentiality of an employee’s use of an Employer Assistance Program (“EAP”).

Effective June 9, 2022, a new section will be added to Washington statute RCW 49.44 making it unlawful for an employer to obtain individually identifiable information regarding an employee’s participation in an EAP. Likewise, any individually identifiable information collected in the process of conducting an EAP must be kept confidential.

There are some limited exceptions permitted:

  • An employee’s participation in an EAP can be disclosed to an employer when the employee was required to attend as a condition of continued employment.
  • Disclosures can be made by EAP providers to prevent or lessen a perceived threat to the health or safety of an individual or the public, or as otherwise might be required of health care providers.

The statute also makes it unlawful for an employer to use an employee’s participation or nonparticipation in an EAP as a factor in a decision affecting an employee’s job security, promotional opportunities, corrective or disciplinary action, or other employment rights—absent the exceptions noted above.

These protections largely mirror existing protections for state employees.