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Navigating the FMLA, the ADA, and Substance Abuse Issues

The number of individuals who suffer from alcohol dependency and drug addiction is staggering. It has been estimated that nearly one in every 13 adults is an alcoholic. Further, according to a 2011 National Survey on Drug Use and Health, of the “19.9 million current illicit drug users aged 18 or older...13.1 million (65.7 percent) were employed either full or part time.”2  Given these statistics, it is highly likely, particularly in larger companies, that there are employees currently struggling with substance abuse issues. 

The challenge for employers is to find a way to manage employees who have substance abuse issues in a way that is fair and does not run afoul of the law. While it is clear that an employer can discipline or take corrective action to address an employee’s absenteeism or other performance issues, once the employer has notice that the conduct stems from the employee’s current or past struggles with addiction, the situation becomes more complicated. This article will address the two primary federal laws that apply to these situations: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).3

Substance Abuse and the FMLA 

The FMLA regulations state that “leave taken for treatment for substance abuse by a health care provider.” They also make clear that “absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.” Distinguishing between what constitutes treatment for substance abuse versus the use of the substance is not always easy, but is critical in determining whether an employee is entitled to FMLA leave. 

An oft-cited case, Darst v. Interstate Brands Corporation,6 illustrates this distinction. In Darst, the employee, Krzystof Chalimoniuk, an alcoholic, worked for his employer for 15 years before being terminated for excessive absenteeism. Chalimoniuk requested leave under the FMLA in order to undergo treatment for his alcohol dependence. However, just prior to requesting such leave, he was absent for three days (July 31, August 2, and August 3) due to his alcoholism. The employer used a points-based system for tracking absences, and Chalimoniuk had accumulated a number that would generally result in termination after his July 31 absence. Chalimoniuk did not enter his treatment facility until August 4, although he had contacted his physician and made arrangements to begin his treatment program earlier. 

Chalimoniuk’s employer terminated him for excessive absenteeism after the three missed days, and he filed a lawsuit alleging various FMLA violations. The court found that the employer’s actions did not run afoul of the FMLA. It determined that Chalimoniuk’s treatment did not begin until he actually entered the treatment facility, and was not persuaded that his earlier communications with his physician constituted “treatment” under the FMLA.7 

In Darst, the court made a bright line distinction between the use of substance and treatment. Note, however, there are several factors that could possibly have changed the outcome, such as if Chalimoniuk had office visits with his physician prior to his hospitalization, if the medical certification had been filled out differently, or if there had also been a request for leave as a reasonable accommodation under the ADA (discussed below). 

In addition, another more recent case seems to have drawn a less strict distinction between the use of the substance and treatment. In Picarazzi v. John Crane, Inc., the employee, who also suffered from alcoholism and had related attendance problems, informed his employer that he needed to attend a rehabilitation program and began his treatment soon thereafter. He was told by his employer that he was entitled to twelve weeks of leave under the FMLA. During this twelve week time period, the employee suffered relapses and was in and out of treatment. His employer terminated him, arguing, in part, that his absences when he was not enrolled in a rehabilitation program were not protected leave under the FMLA. For various reasons, the court disagreed, and in so doing, noted that the “the language of the Code of Regulations does not indicate that, to qualify for FMLA leave, Plaintiff must have been under the care of a physician or enrolled in a rehab institution for each day that he was on leave.”9 

These cases, and their somewhat conflicting outcomes, reflect the inherent challenges in determining whether leave taken related to substance abuse is protected under the FMLA, and demonstrate the need to examine each situation individually. 

Substance Abuse and the ADA 

The ADA draws distinctions between alcoholism and addiction to illegal drugs. Generally, alcoholism is considered to be a disability under the ADA. Accordingly, an employee who suffers from alcoholism may be entitled to a reasonable accommodation, such as a leave of absence to attend a rehabilitation program or a modified work schedule to allow time to participate in a treatment program or attend AA meetings. 

Because of these protections, when an employee informs his or her employer that s/he is an alcoholic, it is advisable that the employer begin working with the employee to determine whether there is an accommodation that would be appropriate and reasonable under the circumstances. Employees can still be disciplined for work-related issues stemming from their alcoholism without running afoul of the ADA, so long as they are treated the same as other employees.10  An employee’s entitlement to a reasonable accommodation does not preclude an employer from also taking whatever action is deemed appropriate to address work or performance-related issues. 

In contrast to alcohol, an employee’s current use of illegal drugs is not protected under the ADA.11  Taking disciplinary or other action against an employee for conduct resulting from his or her current drug use does not implicate the ADA. However, employees who have a history of drug (or alcohol) addiction can be protected under what is referred to as the ADA’s “safe harbor” provision. Under this provision, employees or applicants merit ADA protection if they have successfully completed, or are participating in, a rehabilitation program andare no longer using drugs.12 

The tricky part for employers is determining what constitutes “current” drug use, in order to assess whether ADA protections apply. The EEOC’s Technical Assistance Manual defines current drug use as “the illegal use of drugs that has occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem.” Several courts have embraced a similar standard, but, unfortunately, have declined to adopt any sort of bright-line rules or guidelines with respect to defining what it means to be currently using drugs under the ADA. 

In Mauerhan v. Wagner Corporation13  the court found that completion of a 30 day rehabilitation program was insufficient to merit ADA protection under the safe harbor provision. In that case, the plaintiff was terminated from his company for drug use. Shortly after his termination, he underwent treatment at a rehabilitation facility. After completing the program, he reapplied for his position at his former company and was offered a job but with less compensation, among other things. He sued his former employer under the ADA, claiming disability discrimination. The court found that, given the circumstances, including his potential for relapse, this was not discrimination under the ADA. Other courts have similarly found that an individual can still be considered a current drug user even if s/he has not used drugs for several weeks. 

Though employers prevailed in these cases, the lack of any bright-line rule means that employers need to remain mindful of the ADA protections before taking disciplinary or performance action against any employee with a known addiction issue. 

Takeaways for Employers 

Employees are entitled to leave under the FMLA for substance abuse treatment, but not for absences resulting from substance abuse itself. In some cases it may be difficult to distinguish between the two and employers should carefully analyze the facts of each individual case. 

Alcoholism is generally considered a disability under the ADA and an alcoholic employee may be entitled to a reasonable accommodation, which may include leave or schedule modifications for treatment. The ADA does not protect current use of illegal drugs. Its safe harbor provision does protect employees or applicants who are in or have completed a treatment program and are no longer using drugs or alcohol, though it can be unclear when this provision applies. As with the FMLA, employers should carefully analyze the facts of each individual case. 

In sum, when confronted with an employee who has a substance abuse issue, carefully consider both the FMLA and ADA protections when navigating the situation and always consult with Human Resources and/or Legal Counsel. 
Substance Abuse and Mental Health Services Administration, Results from the 2011 National Survey on Drug Use and Health: Summary of National Findings, NSDUH Series H-44, HHS Publication No. (SMA) 12-4713. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2012. 
While individual state laws may provide additional or overlapping protections, for the purpose of this article, the focus will be on the federal laws. 
29 CFR § 825.119(a). 
29 CFR § 825.119(a)(emphasis added). 
12 F.3d 903 (7th Cir. 2008). 
Treatment for a serious health condition under the FMLA regulations is defined as: “[a] period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves [t]reatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or [t]reatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.” 29 CFR § 825.115(a)(1)-(2). 
2011 U.S. Dist. LEXIS 11432 (S.D. Tex. Feb. 7, 2011). 
Id. at *23. 
10 The ADA specifically states that an employer “may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” 42 U.S.C. § 12114(c)(4). 
11 Illegal use of drugs is defined as: “the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. . .” 42 U.S.C. § 12111(6)(A). 
12 42 U.S.C. § 12114(b)(1)-(3). This provision also protects employees or applicants who are mistakenly regarded as using drugs, but are not. 
13 649 F.3d 1180 (10th Cir. 2011).