Boulukos: Guiding clients through an executive intervention

By Manolis Boulukos

In the opening sequence of “Mad Men” – the popular AMC drama about hard-drinking Madison Avenue execs in 1960s New York – we watch as an animated silhouette of Don Draper, the series’ alcoholic anti-hero, plummets from a skyscraper through a kaleidoscope of iconic advertising images. He falls and falls, but we never see him hit the ground. And then, quite suddenly, he is back in his armchair, cigarette in hand. Viewers are left to wonder: When will the hard landing come?

Boulukos

When an executive’s substance abuse triggers a personal and professional free fall, colleagues may be slow to recognize that the bottom is coming – and fast. At some point, and hopefully before permanent damage has been done, the fact that the leader has become a liability is impossible to ignore. But, as critical as it is to acknowledge that a problem exists, that is, to borrow from the vernacular of addiction recovery, only the first step. Deciding to take action is one thing; deciding what action to take is quite another.

One measure some organizations are choosing is the “executive intervention” in which the executive is confronted by colleagues (and sometimes loved ones) and given the choice between treatment or facing serious, employment-related consequences. Traditionally used within the family context, there is evidence that an intervention may be even more effective when tied to the substance abuser’s employment.

Although staging an executive intervention may seem extreme, one need not look far to see how quickly a leader’s misadventures with drugs or alcohol can become a social media fiasco, causing lasting damage to the reputations of both the executive and the organization. Consequently, for an organization concerned about its leader’s substance abuse, the executive intervention may present an appealing option to address the problem before it becomes a full-blown crisis.

Lawyers with clients considering this unconventional approach will certainly want to encourage the client to consult with a substance-abuse expert as to whether an intervention is advisable from a clinical perspective. From a legal perspective, clients will also need to understand the unique legal risks involved in conducting an intervention in the workplace setting.

At the outset, it is clear that taking no action, or ineffective action, to address an executive’s substance abuse entails its own set of legal risks. Officers and/or board members may have an affirmative legal duty to protect the organization and its shareholders from the acts or omissions of the troubled executive. Among other chilling possibilities, their inaction could expose the organization – and, conceivably, officers and board members themselves – to shareholder actions, sexual harassment lawsuits, tort claims alleging vicarious liability or negligent retention, and governmental enforcement actions based on the executive’s neglect of duties.

If the client determines that an intervention is necessary, the most obvious risk from an employment perspective concerns the Americans with Disabilities Act. Under the ADA, current alcohol abuse may be a covered disability. (In contrast, current illegal drug use is not a disability under the ADA.) Thus, although the ADA allows employers to discipline employees who misuse alcohol in the workplace, an employee suffering the effects of alcohol addiction outside the workplace may be entitled to a reasonable accommodation. Generally speaking, the ADA requires that employers provide a qualified employee with a disability a reasonable accommodation that allows the employee to perform the essential functions of his or her job, unless such an accommodation would create an undue hardship.

More specifically, the ADA has been interpreted to require the employer to engage in an “interactive process” with a disabled employee to discuss the need for, and contours of, potential accommodations. According to the Equal Employment Opportunity Commission, the employer may select from among several accommodations that qualify as reasonable, assuming that each alternative is effective. Consequently, an employer whose “bottom line” at an intervention demands only one option for treatment – say a two-week stay in an inpatient facility followed by outpatient treatment and attending group meetings – may violate the ADA’s accommodation requirement by refusing to discuss other alternatives, for example the executive taking a longer period of leave or receiving outpatient treatment only.

In addition, the ADA’s provisions regarding the confidentiality of medical information may come into play. The organization may find itself in a bind when a top leader takes an extended leave and the ADA limits disclosure as to the reason for the executive’s absence. Also, if, in conducting the intervention, the organization treats the executive differently from other similarly situated, non-disabled employees on the basis of his or her actual or perceived disability, or on the basis of another protected characteristic such as race, age or gender, it may face a discrimination claim under the ADA or another anti-discrimination statute.

Beyond employment discrimination concerns, the executive’s employment contract may pose obstacles to forcing an intervention – and, in particular, to any “bottom-line” consequences that may be intended to secure the executive’s cooperation. In the case of an executive with an ownership interest, there is the question of who is empowered by the organization’s corporate governance structure to force conditions of employment on the executive.

Deciding whether to stage an executive intervention involves weighing numerous and complex potential legal risks. Ultimately, of course, the decision is the client’s to make. The role of counsel is to help the client understand and prepare for the legal consequences that may result. Here are a few key legal issues that should be considered when assisting a client in evaluating or pursuing an executive intervention:

1. Advise the client to seek the advice of a professional with expertise in treating substance abuse to determine whether an intervention is an appropriate course of action, and, if so, to guide the client in planning and conducting the intervention.

2. Once there is a preliminary intervention plan, review and identify potential risks – and consider measures to reduce or eliminate them. Make sure that your client has considered what will happen if the executive is not cooperative.

3. In particular, consider whether the ADA will apply under the circumstances, and how that may affect the client’s desired “bottom line” and its plans for dealing with the executive’s absence (if any).

4. Review relevant employment contracts and corporate governance documents to determine their impact on the intervention plan, including, among other things, the organization’s legal ability to remove the executive and the price of doing so.

5. Finally, consider the ethical implications of advising the organization on the intervention, particularly if you have worked closely with the executive in question. This is one of those instances in which asking yourself “Who’s the client?” could be critical in avoiding a professional misstep.•

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Manolis Boulukos is an attorney in Ice Miller LLP’s labor and employment group. Manolis advises clients on matters including federal and state litigation, wage and hour issues, and administrative proceedings before the EEOC and NLRB. The opinions expressed are those of the author.