Firm choice agreements are primarily used with substance-abusing employees. They employ the leverage of disciplinary action that is held in abeyance only if there is an immediate decision to accept help for a personal problem (usually substance abuse that has been documented or is overtly existent in the form of documentable performance issues.)

Firm choice agreements are a last chance, but they are not "last chance agreements." Last chance agreements employ not the immediate leverage of disciplinary action, but a postponement of certain and assured disciplinary action until the very next infraction of work rules occurs. This is a recipe for disaster with addicts.

Firm choice agreements are the way to go with substance-abusing employees. They can work well, but there are a variety of reasons they can fail, the most important of which is lack of EAP involvement and the close monitoring needed to help the newly recovering addict avoid relapse.

Another reason firm choice agreements often fail is lack of immediacy. The employee is offered the option of being referred for help along with one last chance in terms of job performance. If he or she declines help, nothing happens except to wait for the next infraction.

Any employee with a substance abuse problem will try again to control his or her substance use without treatment, and relapse under these circumstances is almost always assured. Dismissal and loss of human capital is the outcome. This is a big "ouch" for all concerned.

The formula: Firm choice agreements require (1) immediate agreement to (2) attend an assessment, (3) accept referral, (4) enter treatment, and (5) follow through with recommendations (6) monitored by a professional with whom (7) a release is signed and kept active.

All of this is voluntary and completely up to the employee, but the leverage is so powerful that, in my experience, almost all troubled employees (with the exception of those past retirement age) agree to it. The bottom line is that no agreement means immediate dismissal for cause and documented performance issues (not for addiction, alcoholism, or failure to accept help).

Here's the crux: Only the employee's acceptance of the accommodation being offered can save the job at this point. It's the assessment or "Pick up your check from Susie on the way out."

This approach saves lives and effectively intervenes in the dynamic of addictive behavior, denial, procrastination, and manipulation common to employees with substance abuse problems. If dismissal results, it is always based on performance problems, attendance issues, or conduct, not on failure enter an assessment. This is a key point. The organization must be at "wit's end" with the employee.

The opportunity to accept an assessment in lieu of termination is an accommodation for addictive illness, but it is up to the employee, not the company, to say that it is needed. The employer officially doesn't care--either choice is fine. He who cares least wins in this intervention model, because it is the attitude of "detachment" that is the key dynamic that drives successful interventions. There is no "next time" factor in firm choice agreements or this sort of intervention model.

It has been my observation that companies usually have more interest in constructing firm choice agreements with highly valued or long-term employees, but EAP involvement is essential to their success nevertheless.

This classic intervention technique was first fleshed out as a process by the U.S. federal government using guidance issued via its FPM Letters back in the 1970s and 1980s, after the occupational alcoholism movement began. (NIAAA was formed at about the same time this movement took off.)

Unfortunately, the science of how to arrange firm choice agreements has gotten a little murky. Part of the problem is the lost of EAP professionals inside large business with experience. The other is the impact of the Americans with Disabilities Act.

After passage of the ADA, alcoholics lost coverage and protection afforded to them by Section 504 of the national Rehabilitation Act governing handicapped persons. This made mandatory interventions (once required by OPM) obsolete.

Here is the long and short of this post: You'll save a ton of bucks on turnover, training, workers' comp, and EPL risk reduction if you use firm choice agreements properly.

Remember, firm choice agreements that omit professional monitoring will fail almost every time they're tried. They always end up with the famous phrase, "My gosh, and he was doing so well!"

Daniel Feerst, LISW-CP
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