Limitations of Standard Employee Assistance Programs
Most larger law firms and legal service providers offer employee assistance programs (EAPs). An EAP provides mental health and substance use disorder (SUD) support for employees. EAPs are typically outside vendors that assist human resource departments in addressing these complex issues.
Recent research conducted by the National Business Group on Health, the EAP trade association, shows that 97% of larger employers have an EAP program, yet only 5.5% of employees who would benefit from EAPs utilize them. The numbers for SUD are even worse. Data from the Substance Abuse and Mental Health Services Administration's (SAMHSA) Treatment Episode Data Set (TEDS) reveals that EAPs are the referral mechanism for instigating admission to treatment in only 0.5% of treatment admissions. SUD support is one of the primary functions of a typical EAP, but the data demonstrate that standard EAPs are wholly ineffective in getting people into treatment. Treatment referral sources based on SAMHSA data are included in the following table:
Data from the 2019 Substance Abuse and Mental Health Service Administration (SAMHSA) Treatment Episode Data Set (TEDS) - Treatment Referral Source. The percentage of EAP as a referral source to treatment has remained consistently below 1% for the past two decades.
Typical EAP Model
Most EAPs act as mental health treatment referral sources. The onus is typically on the employee to contact the EAP to seek help. The contact is confidential, and the employer is usually not notified. The EAP refers the employee to a local treatment provider. It is then up to the employee to contact the treatment provider and arrange for evaluation and treatment.
SUD sufferers are internally motivated to hide their dysfunction. We rarely seek help until our lives have become unbearably unmanageable. Even then, we are most often delusionally resistant to accepting help absent exceptional external motivation, usually in the form of imminent loss of job, career, freedom, or family. Research shows that the overwhelming majority of employees referred to a treatment provider through an EAP don't follow through. Nor does the EAP typically follow-up to ensure that the afflicted employee has made arrangements to address the issue.
EAP Cost Structure
One of the many perceived benefits of the EAP construct from the employer's perspective is the typical cost structure. EAPs usually charge based on a capitation system, although hybrid models exist. The employer pays a fixed fee per employee to the EAP, which doesn't vary on a utilization basis. This dynamic incentivizes the EAP to do as little as possible in the way of necessary follow-through to address the ingrained behavioral dysfunction characteristic of SUD. Most employers are only too happy to retain the EAP who bids lowest. The expectation is that the EAP will efficaciously address the problem. The reality is that resources aren't efficiently allocated in a typical EAP paradigm to address SUD. The employer buys the illusion that the EAP is addressing SUD issues when in reality, they continue relatively unabated, below the surface of organizational awareness.
The Need for Organizational Awareness
Reliance on EAPs leads to a "pass the buck" cultural framework within law firms. It's easier for law firm management to outsource the problem of SUD in their organizations. First to their HR departments, and then onto EAP vendors. Organizations that have an awareness and understanding of SUD and address it as an integral reality of their organizational culture, dramatically lower rates of SUD. The required cultural dynamic to address SUD needs to be enforced and encouraged at the top levels of law firm management. Unfortunately, this all too common and devastating problem within the legal profession has not been a priority with decisions makers at the organizational level.
EAPs Do Provide Benefit
The relationship between an EAP vendor and a law firm is often long-standing, with valuable infrastructure already in place. In most instances, supplementing the existing EAP support infrastructure with integrated and proactive education, identification, treatment, and monitoring programs results in much greater efficacy in addressing SUD. Implementing a program that complies with the recent ABA recommendations ensures that the management of law firms and other legal services are compliant with the ethical obligations mandated by the rules of professional conduct.
EAPs and the Rules of Professional Responsibility
Law firms and legal service providers have specific ethical duties when addressing a colleague impaired by SUD. The typical EAP provides inadequate protocols to proactively identify SUD, ensure follow-through for evaluation and appropriate treatment, and establish post-treatment abstinence monitoring and aftercare compliance systems. A law firm or legal service provider relying solely on an EAP referral-centric system most likely is not taking the reasonable action required to comply with the ethical duties in addressing impaired colleagues.