The Essential Guide to Family & Medical Leave

66 | the essential guide to family and medical leave
Substance Abuse
Substance abuse may qualify as a serious health condition, if it meets one of
the definitions described above. However, the employee may not take FMLAprotected
leave for the effects of substance abuse (for example, because the
employee is using drugs or hung over). The company is required to provide
FMLA leave for treatment only.
An employee who takes FMLA leave while getting treatment for substance
abuse may not be fired solely for taking FMLA leave; that would violate the
law. However, if the employer has an established, communicated policy
providing that employees may be fired for substance abuse, and it applies the
policy consistently to all employees, it may fire an employee for substance
abuse—even if the employee is out on FMLA leave while seeking treatment.
In other words, the simple fact that an employee is using the FMLA may not
protect that employee from termination for substance abuse, depending on
the employer’s policies.
Policy Alert
If your company has a policy of terminating employment for substance
abuse, the FMLA doesn’t prevent you from enforcing it. If your company
has an established, communicated policy that employees may be fired for
substance abuse and applies it consistently to all employees, the company
may rely on that policy to fire an employee who is on FMLA leave while
seeking treatment.