Archive for June, 2018

Let’s go back to Why . . . Needed to care for a family member or covered servicemember.

After our little aside last time, we are still talking about why an eligible employee can take a leave under the FMLA.  So let’s go back:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

This time we need to take a look at what it means to be “needed to care for a family member or covered servicemember.  So in (3) and (6) above an eligible employee can take time off under the FMLA if the employee needs “to care” for a “spouse, son, daughter, or parent” with a serious health condition or if you the employee needs “to care for a ‘covered servicemember’ with a serious health condition” and the employee is a “spouse, son, daughter, parent or next of kin” of the covered servicemember.  So what is “needed to care for?”

It’s pretty straight forward and it basically means what it says.  The employee is needed to provide actual physical care for a covered person who can’t physically care for themselves, which includes, by the way, taking a covered person to the doctor or providing psychological care like being there for comfort and reassurance even if somebody else, like a nurse, is providing the actual care.

(a) The medical certification provision that an employee is needed to care for a family member or covered servicemember encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.

29 CFR §825.124(a).

It also applies to situations where someone else is the normal caregiver but they can’t be available.  Like they need a vacation.

(b) The term also includes situations where the employee may be needed to substitute for others who normally care for the family member or covered servicemember, or to make arrangements for changes in care, such as transfer to a nursing home. The employee need not be the only individual or family member available to care for the family member or covered servicemember.

29 CFR §825.124(b).

And finally, the leave for this kind of leave can be intermittent in that the care is only needed intermittently because the covered person is only incapacitated intermittently, like say for chemotherapy treatments, or where the employee in only needed intermittently, like where a sister takes care of mom Monday through Thursday and the employee gets Fridays.

(c) An employee’s intermittent leave or a reduced leave schedule necessary to care for a family member or covered servicemember includes not only a situation where the condition of the family member or covered servicemember itself is intermittent, but also where the employee is only needed intermittently—such as where other care is normally available, or care responsibilities are shared with another member of the family or a third party. See §§825.202- 825.205 for rules governing the use of intermittent or reduced schedule leave.

29 CFR §825.124(c).

 

A Little Aside . . . Unable to Perform the Functions of the Position.

So for the last 2 posts we were talking about military leaves and some definitions.  But the next regulations go back to part of the definition of a serious health condition and the need for leave.   Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

 Now you will notice in number 4, which deals with serious health conditions, it says that the employee gets leave if the serious health condition makes the employee unable to do his or her job.  So what the heck does that mean?  Well the definition is way down at 29 CFR §825.123(a).   And it is pretty straight forward and pretty simple:

(a) Definition. An employee is unable to perform the functions of the position where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee’s position within the meaning of the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. 12101 et seq., and the regulations at 29 CFR 1630.2(n). An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

29 CFR §825.123(a).

 So if the employee can’t work at all, or if the employee can’t perform one or more of the essential functions of their job, they have a serious health condition and can have a leave.  But how do you know, you certainly can’t rely on the employee to give the doctor the information you want the doctor to have right?  Right.  So the regulation deals with that too.

(b) Statement of functions. An employer has the option, in requiring certification from a health care provider, to provide a statement of the essential functions of the employee’s position for the health care provider to review. A sufficient medical certification must specify what functions of the employee’s position the employee is unable to perform so that the employer can then determine whether the employee is unable to perform one or more essential functions of the employee’s position. For purposes of FMLA, the essential functions of the employee’s position are to be determined with reference to the position the employee held at the time notice is given or leave commenced, whichever is earlier. See §825.306.

29 CFR §825.123(a).

You get to send the essential functions of the job to the health care provider for review and you get to get a statement back from the doctor as part of the certification process that says which of the essential functions the employee can’t do.  And I cannot stress enough what a valuable tool this is for employers.  For example, a doctor may think that the employee needs time off for appointments, not realizing that the employee works second shift.  Or, the employee may not be able to lift over 10 lbs. but have a job that only requires them to lift 5.  This is tool all employers should be using.

Why? Military Family Leave . . . . Part 2.

So far that is the same set of definitions we have found elsewhere in the act.  Now here is where it gets different.  Who the heck is a “next of kin?”

(e) Next of kin of a covered servicemember means the nearest blood relative other than the covered servicemember’s spouse, parent, son, or daughter, in the following order of priority: blood relatives who have been granted legal custody of the covered servicemember by court decree or statutory provisions, brothers and sisters, grandparents, aunts and uncles, and first cousins, unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. When no such designation is made, and there are multiple family members with the same level of relationship to the covered servicemember, all such family members shall be considered the covered servicemember’s next of kin and may take FMLA leave to provide care to the covered servicemember, either consecutively or simultaneously. When such designation has been made, the designated individual shall be deemed to be the covered servicemember’s only next of kin. See §825.127(d)(3).

29 CFR §825.122(e).

OK that is helpful.  Here is the deal, next of kin for the purpose of these types of military leave, and this is the only place in the FMLA where this appears, is somebody who is not a parent or child but who is the next closest blood relative or somebody who was designated as a next of kin by the service member or has been given legal custody of the servicemember.  And get this, if there is no designation, then there are multiple family members at the same level, say 9 brothers and sisters like my dad had, they all are entitled to leave to take care of the covered service member.

Now there are other definitions in this section for adoption and foster care and but we are not going to go into those.  But you should know the following:

(h) Son or daughter on covered active duty or call to covered active duty status means the employee’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on covered active duty or call to covered active duty status, and who is of any age. See §825.126(a)(5).

(i) Son or daughter of a covered servicemember means the covered servicemember’s biological, adopted, or foster child, stepchild, legal ward, or a child for whom the covered servicemember stood in loco parentis, and who is of any age. See §825.127(d)(1).

(j) Parent of a covered servicemember means a covered servicemember’s biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the covered servicemember. This term does not include parents “in law.” See §825.127(d)(2).

29 CFR §825.122(h-j).  And these are self-explanatory so I don’t have to get into any detail on them right?

But one last thing.  How do you prove all this and can you require the employee to prove it?  You can, but you can’t ask for too much:

(k) Documenting relationships. For purposes of confirmation of family relationship, the employer may require the employee giving notice of the need for leave to provide reasonable documentation or statement of family relationship. This documentation may take the form of a simple statement from the employee, or a child’s birth certificate, a court document, etc. The employer is entitled to examine documentation such as a birth certificate, etc., but the employee is entitled to the return of the official document submitted for this purpose.

29 CFR §825.121(k).

Why? Military Family Leave . . . . Part 1.

More why employees can take a leave.  Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

So we have covered 1, 2, 3, and 4.  Now let’s talk about the so called Military Family Leave.  As you can see, an employee can also take leave for certain military issues for their family. An employee under these sections can take FMLA leave for 2 main reasons:  A qualifying exigency; and to care for a “covered servicemember”.  OK what does that all mean?  Let’s start with some definitions.

(a) Covered servicemember means: (1) A current member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or

(2)  A covered veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Covered veteran means an individual who was a member of the Armed Forces (including a member of the National Guard or Reserves), and was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. See §825.127(b)(2).

29 CFR §825.122(a)(1 & 2).

Simple enough, a covered service member is a person who is in the Armed Forces (including the National Guard or Reserves) who is undergoing treatment for a serious injury or illness or if you are a veteran who was discharged 5 years ago or less and is undergoing treatment for a serious health condition.

That’s one down, now about a spouse.  This was way more complicated before the Supreme Court recognized same sex marriage as a right.  Now, it is just somebody you are legally married to.  29 CFR §825.122(b).  Parent is equally simple it is a parent, step-parent, adoptive parent, foster patent or any individual who stood in loco parentis to the employee.  Loco parentis for those of you that don’t know means somebody who stood in the place of your parent, like grandma, if grandma raised you.  29 CFR §825.122(c).  Son or Daughter is the same, son or daughter means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence.  29 CFR §825.122(d).  Incapable of self-care and physical or mental disability mean that the individual requires active assistance to provide daily self-care and that the individual has a physical or mental impairment that substantially limits on or more major life activities as defined in the ADA.  29 CFR §825.122(d)(1-3).

Why? Leave for Adoption or Foster Care.

More why employees can take a leave.  Let’s go back to the why just to refresh our recollection.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

We have covered the serious health condition leave, we have covered the birth of a child.  Now let’s talk about placement for adoption or foster care.  You are not going to be surprised to learn that leave for adoption and foster care is very similar to leave for birth of a child.  For example:

(a) General rules. Eligible employees are entitled to FMLA leave for placement with the employee of a son or daughter for adoption or foster care as follows:

(1) Employees may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed. For example, the employee may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption. The source of an adopted child (e.g., whether from a licensed placement agency or otherwise) is not a factor in determining eligibility for leave for this purpose.

 29 CFR §825.121(a)(1).

See, like for a birth, you can take leave for the placement of the child.  You can also take leave before the placement for court dates or counseling sessions or doctors’ appointments or appointments with a lawyer.  And you can also take time off to travel to pick up your new child.

The leave for birth or adoption has to be taken within 12 months of the date of the placement. And as is the case with the birth of a child, parents who work for the same employer get a combined total of 12 weeks to be with a healthy placed child.  But the parents still get up to 12 weeks each for a child with a serious health condition.  Finally, leave for a healthy placed child can only be taken intermittently or on a reduced schedule if the employer agrees to let the employee it take it that way.  If the leave is for a serious health condition for the placed child, on the other hand, the employee gets to take the leave intermittently or on a reduced schedule if it is medically necessary, even if the employer objects.

29 CFR §825.121(a)(2-4) and (b

Why? Leave for Pregnancy or Birth . . . . Part 2.

OK, so last time we talked about leave for birth and care of a healthy baby with a healthy mother.  Now let’s talk about some of those other circumstances.  What if mom is incapacitated either before or after the birth?  Of course she gets leave for that:

(4) The expectant mother is entitled to FMLA leave for incapacity due to pregnancy, for prenatal care, or for her own serious health condition following the birth of the child. An expectant mother may take FMLA leave before the birth of the child for prenatal care or if her condition makes her unable to work. The mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days. The expectant mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a health care provider during the absence, and even if the absence does not last for more than three consecutive calendar days.

29 CFR §825.120(a)(4).

That makes sense, but why do we need this additional regulations, why isn’t that just covered by the definition of a serious health condition?  Because some of the requirements for a serious health condition don’t apply when the mother is incapacitated due to pregnancy.  For example. The mother does not necessarily need to see a doctor for every incident of incapacity nor does she need to be out for 3 consecutive days.  So when a women is pregnant, she gets a bit more slack cut for FMLA leave and a bit more freedom to take that leave without jumping through hoops go get it approved.

Now a spouse gets time off to take care of a pregnant spouse too:

(5) A spouse is entitled to FMLA leave if needed to care for a pregnant spouse who is incapacitated or if needed to care for her during her prenatal care, or if needed to care for her following the birth of a child if she has a serious health condition. See §825.124.

29 CFR §825.120(a)(5).

And both parents get time off to take care of a newborn that has a serious health condition:

(6) Both parents are entitled to FMLA leave if needed to care for a child with a serious health condition if the requirements of §§825.113 through 825.115 and 825.122(d) are met. Thus, spouses may each take 12 weeks of FMLA leave if needed to care for their newborn child with a serious health condition, even if both are employed by the same employer, provided they have not exhausted their entitlements during the applicable 12-month FMLA leave period.

29 CFR §825.120(a)(6).

So what kind of leave we have when a child is born is important because it determines not only the amount of leave that can be taken by parents who work for the same employer like we discussed last time, but it also determines if the leave can be taken intermittently or on a reduced schedule.

(b) Intermittent and reduced schedule leave. An eligible employee may use intermittent or reduced schedule leave after the birth to be with a healthy newborn child only if the employer agrees. For example, an employer and employee may agree to a part-time work schedule after the birth. If the employer agrees to permit intermittent or reduced schedule leave for the birth of a child, the employer may require the employee to transfer temporarily, during the period the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position. Transfer to an alternative position may require compliance with any applicable collective bargaining agreement, Federal law (such as the Americans with Disabilities Act), and State law. Transfer to an alternative position may include altering an existing job to better accommodate the employee’s need for intermittent or reduced leave. The employer’s agreement is not required for intermittent leave required by the serious health condition of the expectant mother or newborn child. See §§825.202—825.205 for general rules governing the use of intermittent and reduced schedule leave. . . .

29 CFR §825.120(b).

What all that says is leave for a healthy newborn can only be taken intermittently or on a reduced schedule if the employer agrees to let the employee it take it that way.  If the leave is for a serious health condition for the mother, taken either by the mother or by a spouse to care for the mother, or for a serious health condition for the newborn, on the other hand, the employee gets to take the leave intermittently or on a reduced schedule if it is medically necessary even if the employer objects.

Why? Leave for Pregnancy or Birth . . . . Part 1.

OK we are all done with serious health conditions . . . yea . . . for now.  So why else can you take an FMLA leave?   Let’s look.  If you are a covered employer you have to grant leave to an eligible employee for 6 basic reasons:

(a) Circumstances qualifying for leave. Employers covered by FMLA are required to grant leave to eligible employees:

(1) For birth of a son or daughter, and to care for the newborn child (see §825.120);

(2) For placement with the employee of a son or daughter for adoption or foster care (see §825.121);

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition (see §§825.113 and 825.122);

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s job (see §§825.113 and 825.123);

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty (or has been notified of an impending call or order to covered active duty status (see §§825.122 and 825.126); and

(6) To care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. See §§825.122 and 825.127.

29 CFR §825.112(a).

We talked extensively about what a serious health condition is, so let’s look at a couple of other reasons why an eligible employer can take a leave.  And today, we will start with “(1) For birth of a son or daughter, and to care for the newborn child.”  We don’t really have to define “birth of a son or daughter” do we?  So let’s just get into the specifics of when we have to give that leave.   First, you have to give an employee time off to actually have the baby, Duh!

(a) General rules. Eligible employees are entitled to FMLA leave for pregnancy or birth of a child as follows:

(1) Both parents are entitled to FMLA leave for the birth of their child.

29 CFR §825.120(a).  That makes sense right?  But remember it is not just mom who gets the time off when the baby is born, it is dad too.  And also remember that provision of the regulations says both “parents” get time off for the birth, not “spouses.”

Both parents are also entitled to time off after the birth to bond with an otherwise healthy baby. That time has to be taken within 12 months of the birthday of the newborn and it can be taken even if the baby does not have a serious health condition.  One of the things you need to remember is that some states (most notably California) allow for additional bonding time with occasionally different eligibility rules.  If that is true, any leave that is taken under these state laws that does not qualify for FMLA leave can’t be counted as FMLA leave.  Specifically, the regulation states:

(2) Both parents are entitled to FMLA leave to be with the healthy newborn child (i.e., bonding time) during the 12-month period beginning on the date of birth. An employee’s entitlement to FMLA leave for a birth expires at the end of the 12-month period beginning on the date of the birth. If state law allows, or the employer permits, bonding leave to be taken beyond this period, such leave will not qualify as FMLA leave. See §825.701 regarding non-FMLA leave which may be available under applicable State laws. Under this section, both parents are entitled to FMLA leave even if the newborn does not have a serious health condition.

29 CFR §825.120(a)(2).

OK, that all makes sense.  Parents get time off for the actual birth of the child and then they get additional time off for bonding with the child after the child is born and even if the child is not suffering from a serious health condition.  How much time?  A total of 12 weeks right?  Right, but what if both spouses work for the same employer.  Not all that rare is it?  Well, there is a regulation for that too.

(3) Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken for birth of the employee’s son or daughter or to care for the child after birth, for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement, or to care for the employee’s parent with a serious health condition. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a healthy, newborn child, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. Note, too, that many state pregnancy disability laws specify a period of disability either before or after the birth of a child; such periods would also be considered FMLA leave for a serious health condition of the birth mother, and would not be subject to the combined limit.

29 CFR §825.120(a)(3).

That’s right, when we are talking about the birth of a child and bonding time with a healthy baby, if both spouses work for the same employer you can limit them to a total of 12 weeks of leave.  Now remember this limit only applies to time off for birth and care of a heath baby.  If the baby has a serious health condition both spouses can take a full 12 weeks to care for the baby and the other combinations are way too complicated to get into here.  The thing to remember is the 12 week limit can be different for each different set of circumstances.  Next time we will talk about some of those situations.

Why? A Serious Health Condition under the FMLA – Part 9.

OK honestly, really, this is the last post on a serious Health Condition and what it means.  No kidding, I’m serious.  So let’s go back to the definition:

(a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in §825.114 or continuing treatment by a health care provider as defined in §825.115.

29 CFR §825.113(a).

But this time, we are talking about a very specific need for leave.  That is for treatment of substance abuse.  Yes, there is a regulation just for that issue.  And I am sure that is because it comes up . . . a lot.    So, is time off for treatment for substance abuse considered time off for a serious health condition under the FMLA?  It can be.

(a) Substance abuse may be a serious health condition if the conditions of §§825.113 through 825.115 are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.

29 CFR §825.119(a).

The answer you can see is yes, it can be if it meets the definition of serious health condition that we have been talking about over the last 8 posts.  But there are some caveats here.  First, you have to actually be in treatment.  You can’t just take a leave to recover from the effects of the substance abuse, and that treatment has to be by or under the direction of a health care provider as that term is defined in the FMLA. Second, and again, an absence because of use is not covered by the FMLA.  “I can’t come to work because I’m high” is not an FMLA covered reason for taking time off.  “I need to be out for 3 weeks to be in inpatient treatment for my opioid addiction” is.

OK, so I am in treatment for my opioid addition, can I be disciplined or because I am now covered by the FMLA, does that mean my employer can’t discipline me?  In this case, an employee being on an FMLA leave does not get them off the hook.

(b) Treatment for substance abuse does not prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for treatment. However, if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, pursuant to that policy the employee may be terminated whether or not the employee is presently taking FMLA leave. An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance abuse.

29 CFR §825.119(b).

Here is what you can’t do: you can’t discipline an employee for taking a legitimate FMLA covered leave, no matter why they take the leave.  If it is FMLA covered they are off the hook.  But you CAN discipline an employee that otherwise violates your substance abuse policy, and being on an FMLA leave does not get them off the hook for that policy violation.  Now, you have to be a bit careful here.  You have to have an “established policy;” you have to apply it in a “non-discriminatory manner;” and you have to “communicate it to all employees.”

Oh, and one more thing, don’t forget that an employee can take time off to care for a family member with a serious health condition, and that includes a family member that has is in substance abuse treatment where necessary.  That employee you cannot discipline.