What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the tenth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not properly considering treatment for substance abuse as FMLA-qualifying.

Substance abuse is a workplace issue that can quickly become complicated. Employers should keep in mind that substance abuse can be a serious health condition (SHC) under the FMLA if the requirements for a SHC are otherwise met (for an overview of those requirements, see our earlier post in this series discussing what constitutes a serious health condition).

FMLA leave may only be taken for substance abuse if the treatment is administered by a heath care provider, or by a provider of health care services on referral by a health care provider. FMLA leave is for treatment of the employee’s substance abuse. An employer need not tolerate absences because of the employee’s use of the substance, which would not qualify for FMLA leave.  While an employer may not take action against an employee because the employee exercised FMLA rights, an employer can take employment action for substance abuse if the employer has an established policy, applied in nondiscriminatory manner that has been communicated to all employees and which provides under certain circumstances an employee may be terminated for substance abuse.

In Green v. Baptist Hospital, Case No. 3:15cv124 (D. Fla. Nov. 28, 2016), an employee alleged that his employer interfered with his right to take FMLA when he was fired. The employee took 3 weeks of FMLA for substance abuse treatment, and about two weeks later relapsed. Plaintiff was a “no call/no show” from work for five days, and he was fired on the sixth consecutive day of unexcused absence for his “no call/no shows.”  The court decided that the employer properly terminated the employee, who testified that he was absent because he was “probably just getting high.” The court found that the employer acted properly by allowing the employee to previously take FMLA leave to receive treatment, and the employer was entitled to terminate the employee for the “no call/no show” behavior because no FMLA protection existed for the situation where an employee was absent due to his substance use.

In Holloway v. D.C. Government, Case No. 09-512 (D.D.C.  Dec. 30, 2013), the court denied an employer’s motion for summary judgment of an employee’s FMLA interference claim. The employee entered a long-term substance abuse treatment program, and informed his employer of his need to take FMLA leave for successful completion of the program. However, the employer failed to respond to the employee’s leave request and ultimately terminated the employee after the employee did not report to work. The court decided that the employee had provided his supervisor with adequate notice of his desire to take FMLA leave to attend a substance abuse program, a valid use of FMLA.

Employers must balance goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition that might require FMLA leave. Employers should keep in mind that an employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse.