For some people, one barrier to an inpatient rehabilitation program for substance abuse is the thought of turning their lives upside down, including losing their jobs. It’s critical for both employers and employees to understand in what ways the Family and Medical Leave Act (FMLA) is available for individuals needing time off work for treatment.
Both parties have rights under the law.
FMLA: What Employers Must Know
As outlined by the American with Disabilities Act (ADA), substance abuse is considered a disability, with restrictions:
- Someone with an alcohol addiction is considered as having a disability.
- Someone with a drug addiction is also considered as having a disability, only if he or she isn’t currently abusing illicit drugs. However, someone who was addicted to illegal drugs and is currently seeking treatment is protected by the ADA.
- An employer cannot discriminate against someone with a history of alcohol or drug abuse, but ADA protections dissolve if an employee is under the influence of alcohol or drugs in the workplace, or if a drug test reveals his or her use of illicit substances.
Because of the above ADA designation, substance abuse disorder (SUD) treatment is categorized as a serious health condition (SHC) by U.S. federal regulations, and eligible for FMLA protection.
Not all employers are required to provide medical absences or provisions under the FMLA. The U.S. Department of Labor (DOL) stipulates only covered employers must provide “unpaid, job-protected leave.” Covered employers meet the following criteria, as per the DOL:
- Private-sector employer, with 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including a joint employer or successor in interest to a covered employer
- Public agency, including a local, state, or federal government agency, regardless of the number of employees it employs
- Public or private elementary or secondary school, regardless of the number of employees it employs
Employers that don’t meet all the federal criteria may still be covered by state or municipal family leave laws. Employers may also elect to offer the FMLA option to employees.
Official policies regarding all requirements in accordance with the FMLA, medical leave, substance abuse, and workplace expectations must be available in writing to all employees in a uniform manner. Any employee should be able to review company rules and regulations, and refer to them when placing any FMLA requests.
Any enforceable policies must be clear and fair to all employees. And while an employer has the right to uphold necessary discipline regarding substance abuse and job performance, including termination, it doesn’t have the right to terminate an employee on FMLA-sanctioned release while undergoing substance abuse treatment.
Both employers and employees would benefit from reviewing this guide provided by the DOL.
FMLA: What Employees Should Know
There are many contingencies regarding an employee’s FMLA rights. First and foremost, you cannot use the FMLA employment permissions granted to you while currently abusing drugs or alcohol, or suffering the results of this abuse. There are no exceptions to this rule.
However, if you’re undergoing treatment for SUD that’s medically authorized and supervised, it’s classified as an SHC. Consequently, your position is protected under the FMLA guidelines.
While you’re not required to share medical records with your employer to obtain leave, it may mandate that you provide medical certification as proof of your condition and necessary treatment. Your employer may also be within rights to request a second or even third medical opinion of your need for SUD treatment. Follow-up consultations like these occur at the employer’s expense.
Your employer doesn’t have the right to contact your health provider or treatment center, and it cannot request you sign a waiver or release. However, it’s your responsibility to provide a quantifiable medical certification justifying your need for the FMLA leave.
To be eligible for SUD medical leave under the FMLA, you must:
- Work for a covered employer—certain stipulations apply.
- Be employed by the covered company for 12 or more non-consecutive months.
- Accrue a minimum of 1,250 hours during those 12 months prior to medical leave request.
- You must submit your request approximately 30 days prior to the need or, in the case of caregiver leave, as soon as possible.
According to the FMLA regulations, you’re permitted 12 weeks of unpaid medical leave within one year for your SUD treatment, or to care for a spouse or family member in SUD treatment. U.S. service members are permitted up to 26 weeks of SUD leave for themselves or while caring for family members.
In either case, you may structure your FMLA absence to also include any accrued paid sick or family leave, as well as paid vacation leave, if taken for an eligible reason according to federal regulations. Your FMLA leave may be taken in full or incrementally.
Your employer may require you to check in periodically during your leave of absence. The policy for this and other FMLA procedures should be explained before your departure and provided in writing.
Under the FMLA guidelines, you’re “entitled to return to the same or an equivalent job at the end of your FMLA leave.” There are numerous stipulations—this fact sheet provides helpful information.
Understanding your rights under the Family and Medical Leave Act provides one less barrier to effective treatment.
If you or a loved one is ready to start the recovery process, our thoughtful admission coordinators are available 24 hours a day, seven days a week to walk you through the treatment process at Willingway, including connecting you with a staff physician or certified addiction counselor. This professional can help you choose what program is right for your needs and work with your employer to provide the necessary certification.