EAPs are great tools for managers and subordinates


Employee assistance programs (EAPs) have existed for many years in all agencies. For managers, they are available as a place to refer an employee who may have conduct or performance problems on the job or otherwise may be having a tough time.

For employees with personal problems, they are free, competent and mostly confidential sources of help. All employees and supervisors should understand the basics of the programs to ensure maximum use and fulfillment of legal requirements.

First, managers should know that agencies are required by law to have EAPs. Thus, it is not just some nice-to-have, optional employee benefit and should not be regarded that way.

Second, managers are required by law to refer employees to EAP if they suspect an employee has a drug or alcohol abuse problem. Employees are not obligated to follow through on the referral, but managers should be aware that Congress first mandated EAPs as a means of helping treat federal employees who have substance or alcohol abuse issues.

Third, EAP counselors must keep confidential anything that is told to them by the employees they treat, with few exceptions. One important exception is the employee who makes threatening statements about or toward others during an EAP session. Under such circumstances, state laws require the EAP counselor who believes the threat may be real to reveal what is said, but only to the extent necessary to protect others.

The most important point about the confidentiality is to recognize that managers cannot use EAP as an investigatory tool to find more evidence to use against a problem employee. An employee who may be distrustful of his management should take comfort in knowing the EAP is a true source of confidential assistance that, over the years, has helped many thousands of employees with difficult life problems, not just alcohol and drug abuse.

Aside from these statutory requirements, EAPs have grown in scope and significance. A capable manager should visit an EAP office to learn the types of services offered, the signs of when an employee may benefit from EAP, and strategies to encourage EAP use.

Managers who are contemplating an adverse action for poor performance or misconduct, particularly if observed behaviors have changed over time, should consider EAP and put a suggestion of EAP use in writing. For example, a memo preceding a performance improvement plan to warn an employee that performance is slipping to the unacceptable level should also include a statement advising the employee about the availability of free, confidential counseling by trained EAP professionals. Such a memo is a good supervisory practice to both document and place an employee on notice.

Adverse-action proposals routinely include EAP advisements, as well as notice that the employee may provide for consideration any medical reason for behavior or performance problems. It is the employee’s decision whether to share with managers a medical reason for misconduct or poor performance or the results or progress in EAP counseling.

The manager should not make paternalistic judgments about the employee’s privacy choices. He should instead focus on making a good supervisory judgment about the employee’s substandard employment or misconduct and take comfort in the fact that, overall, EAP has helped thousands and has greatly contributed to the efficiency of government by helping to produce productive and less-stressed employees.

One final use of EAP is to help the manager deal with the employee whose alcoholism is affecting the workplace. Remedies such as “firm choice” (either go to EAP and get treatment or be fired) and “last chance” (go to EAP and get treatment and if there is further misconduct you will be fired and your appeal rights will have been waived) are effective in helping an alcoholic realize that he has hit bottom and needs help.

While neither firm choice nor last chance is required by law, an agency has the option to use these tools, and EAP is a great partner in an effort to turn a life around to produce a valuable and reformed agency asset.

Remember: It’s there, it’s free, it’s confidential and it makes a difference. Use it.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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