Substance abuse and the FMLA

By | February 5, 2008

Alcoholism, Serious Health Condition, unauthorized contact with health care provider, Treatment

Darst v. Interstate Brands Corp., —F 3d.—, 2008 WL 108764 (CA 7 (Ind.)), 13 Wage & Hour Cas.2d (BNA) 265

Employee with attendance problems missed three days of work allegedly because of alcoholism. Employee later checked himself into a treatment facility. Upon employee’s return to work, employer terminated employee for exceeding permitted absences within certain period because of the three missed days prior to entering treatment. Employee sued arguing that his treatment for alcoholism included the three days because he initiated a phone call to physician seeking treatment.

FMLA does not address whether alcoholism constitutes a serious health condition. Department of Labor regulations do address the matter. Substance abuse may be a Serious Health Condition under certain conditions but FMLA leave may be taken only for treatment for substance abuse. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. In the case of substance abuse, the relevant period of incapacity is the time the employee is unable to work due to treatment.

Employer impermissibly contacted the employee’s health care provider to clarify differing FMLA leave dates as employee obtained two notes from different doctors who indicated different start dates for treatment. FMLA provides no remedy for such illicit contact unless the action interfered with, restrained or denied employee’s exercise of rights under FMLA.

Employer must give employee notice of incomplete medical certification and provide employee with opportunity to correct it.

If employer fails to do this then employee must show that he could have cured the deficiency in the certification form.

In the instant case, employee needed to show that he was receiving treatment for three days that company assumed he was not and which resulted in three missed days of work leading to his firing. Employee tried to establish that treatment began when he first called doctor for help. However, FMLA does not cover actions such as calling to make an appointment as “treatment.” Treatment does not include any activities that can be initiated without a visit to a health care provider.

Drug victims can now submit themselves to Substance Abuse Drug Rehab Programs and Substance Abuse Recovery Programs from reputable drug rehabilitation centers.

[tags]fmla, fmla law, alcoholism, treatment for alcoholism, substance abuse, unauthorized contact with health care provider[/tags]

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