As we so often discover in this line of work, the answer is maybe. An employee assistance plan (“EAP”) may be designed to provide a wide range of services to employees to ease the anxiety of working life – and ideally increase workplace productivity in the process. Most EAPs are designed to address specific issues (e.g., drug or alcohol addiction counseling) or to simply lend an open phone line for employees to call to talk about any problem that may be stressing them out. Like voluntary benefit programs, whether the EAP must file a Form 5500 depends on whether it is subject to ERISA, and the DOL has provided guidance through a series of advisory opinions clarifying that an EAP is an ERISA-covered group health plan if it provides medical or sickness benefits.
So when does an EAP provide medical or sickness benefits and cross the line into ERISA territory? The most common trigger is an EAP that provides counseling to callers (usually mental health or substance abuse counseling), and an EAP is almost certain to be an ERISA-covered plan if you or your vendor staff the EAP line with trained professionals. An EAP that acts purely as a service for referring callers to other health professionals may be able to skirt the Form 5500 filing requirement, but check with your ERISA counsel before electing not to file, as even a referral-based EAP may be an ERISA plan depending on its design.
If your EAP is not exempt from ERISA and you must file a Form 5500, you should decide whether to wrap it with your other welfare benefits to file a single Form 5500, or to treat it as an individual plan (particularly if the EAP has less than 100 participants and it would be exempt from the filing requirements). If you aren’t filing a Form 5500, take a look at your EAP now to reconsider whether you should be filing, as Form 5500 non-filers are on the IRS’s radar, and it’s always best to stay ahead of the game.