Can an employee take FMLA leave for substance abuse?
The FMLA regulations clearly state that:
“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.”
(19 C.F.R. § 825.119(a) (emphasis added).)
So, according to the regulations, an employee is not qualified for FMLA leave if he/she is absent because of current substance abuse right? Not so fast.
In Picarazzi v. John Crane, Inc. (“J. Crane”), the employee, Picarazzi, had a history of alcohol abuse and started to have attendance problems in March 2008. In late March or early April, 2008, the employee informed J. Crane of his alcoholism and his need to get some help. He filled out leave of absence paperwork and went into rehab on April 2, 2008. He turned in a FMLA medical certification from his doctor that said he would be in rehab for approximately 30 days and the anticipated discharge date was May 2, 2008. The HR coordinator for the J. Crane approved the FMLA leave and provided the employee with an FMLA designation form stating that his “12 weeks of job protection expires on June 23, 2008.” The Company also asked that the employee check in every 30 days.
The employee was discharged from rehab on April 23rd with a return to work note from the rehab facility stating he could return to work the next day. However, his doctor issued a return to work note stating he could return to work on April 30th with no restrictions. The employee did not return to work at any time between April 24th and April 30th. Instead, he had relapsed and returned to rehab on April 30th. He was discharged from rehab on May 8th, and his doctor provided a return to work release saying he could return to work on May 13th. He didn’t return to work until May 14th, and then went out sick on May 15 & 16. He relapsed again on or around May 21st and eventually went back into rehab on June 9th and was released on June 15th. On many days in between and after his various rehab treatments, the employee was absent from work and apparently consuming alcohol (in fact he admitted in his deposition that he was drinking about a pint of vodka every day).
In applying its attendance “point” system, J. Crane considered the periods when the employee was in rehab (April 2 – April 23, April 30 – May 8, and June 9 – June 15) as FMLA leave and did not assess any points against him for those days. However, J. Crane did not consider the days when the employee was not in rehab and did not return to work, as protected leave and assessed absentee points against him. Pursuant to its policy, because the employee had a significant number of absentee points against him, J. Crane terminated the employee on June 26, 2008. He filed a lawsuit against J. Crane arguing that his termination was wrongful and violated his rights under the FMLA.
In reliance on the strict language of the FMLA regulations, J. Crane filed a motion for summary judgment against the employee’s FMLA claim. The Company argued that it assessed absentee points against the employee only on those occasions when he was not enrolled in a rehab program or under his doctor’s care.
Despite the Language of the FMLA Regulations, the Court Denied the Motion for Summary Judgment. Why?
Among other reasons, the Court found that:
1. An employee need not be enrolled in a rehab facility every day that he is on leave in order to qualify for FMLA leave. Therefore, some days the employee was out of rehab could still qualify as FMLA protected and thus a triable issue of fact exists.
2. The employer made representations to the employee (contained in the FMLA designation form prepared by J. Crane’s HR coordinator) that he was on “job protected” FMLA leave until June 23, 2008.
Important Lessons for Employers.
- Accuracy of FMLA paperwork is essential. The Court focused on J. Crane’s FMLA designation form that stated that the employee’s “job protected” leave would expire on June 23, 2008. The medical certification from the employee’s doctor listed only 30 days for the anticipated duration of rehab. Therefore, that should have been the date the employee’s “job protected” FMLA leave should have expired absent a change in circumstances (and new medical certification) extending the FMLA leave. What the HR coordinator did with the FMLA designation form was confuse the employee’s total “entitlement” to 12 weeks leave in a 12 month period under the FMLA, with the “approved amount” of FMLA leave being granted based on the information provided by the health care provider. Therefore, according to the Court, while the FMLA regulations don’t protect the current use of alcohol, the employee here could reasonably rely on the representation in the FMLA designation form and believe he was on job protected leave until June 23, 2008.
- Employers should not complete generic FMLA paperwork and merely say “you get 12 weeks during 12 months and the leave expires on X.” Rather, employers should use the information they have from the employee and his/her health care provider to complete careful and accurate FMLA paperwork that reflects the realities of the given situation. If circumstances change and the employee says he/she needs further leave, the employer is entitled to seek additional medical certification to be fully informed of the employee’s current situation and the basis for any further FMLA leave.
 The employee also claimed that J. Crane didn’t follow its progressive discipline policy but that issue is not discussed in this case review.