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Absences Due to Substance Abuse before Rehab Begins Not Protected under FMLA

    Client Alerts
  • January 18, 2008

Alcoholism and drug addiction are protected “Serious Health Conditions” under the Family and Medical Leave Act (“FMLA”).  Employers often question their legal obligation to excuse or to accommodate the effects of substance abuse on the employee’s attendance or work performance.  A new decision from the Seventh Circuit Court of Appeals, Darst v. Interstate Brands Corp., explains the differences between protected and unprotected absences relating to substance abuse.


The plaintiff in this case was an employee close to discharge due to absenteeism.  He missed work for three days while intoxicated, before checking himself into an inpatient rehabilitation program.  He then provided paperwork from his physician certifying that he was an alcoholic, and suffered from a Serious Health Condition during the entire period of absence.


IBC verified the plaintiff’s hospitalization dates.  While conceding that the inpatient treatment would have qualified for FMLA leave, the company terminated the employee based upon the three days absence preceding hospital admission.  The district court dismissed the employee’s FMLA claim, noting that absences attributable to substance abuse are not protected under FMLA.  Only those absences relating to treatment of and recovery from the condition are protected.


The Seventh Circuit affirmed dismissal of the claim.  The plaintiff claimed that the employer was estopped from challenging the medical certification provided by the hospital because it (1) never sought a second opinion as provided under FMLA regulations; and (2) contacted the hospital for information regarding dates of admission, in violation of FMLA rules.


Although the employer’s questions to the hospital over information on the medical certification form technically violated FMLA rules (unlike the ADA, employers may not contact the health care provider regarding medical information provided without the employee’s permission), the plaintiff was not harmed by this violation.  The medical certification form was inaccurate, not incomplete, and no additional information from the employee would have made the initial absences FMLA protected.  The second medical opinion procedure is optional for the employer, and its failure to elect this option does not preclude it from later challenging the validity of the employee’s certification.


While FMLA protects treatment relating to substance abuse, it does not excuse employees’ behavior that results from such abuse.  FMLA rights only apply to the medical course of treatment and recovery resulting from attempts by the employee to seek assistance, and not from the effects of substance abuse that trigger the need for treatment.