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.