Time off for binge drinking doesn’t qualify for FMLA leave

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in Employment Law,FMLA Guidelines,Human Resources

Employees who are alcoholics may be disabled under the ADA and are entitled to reasonable accommodations for treatment. That treatment also qualifies the employee for FMLA leave. But it doesn’t mean you have to tolerate or forgive unauthorized absences to indulge an alcoholic binge.

In fact, if you have a solid, no-fault attendance policy, you will be able to count those unexcused absences toward the employee’s accumulated absences. Just make sure you don’t count treatment time, such as periods spent in an actual rehabilitation program.

FMLA rules clearly state that “leave may only be taken for treatment of substance abuse by a health care provider.”

Recent case: Krysztof Chalimoniuk struggled with alcoholism. His employer had a stringent, point-based attendance system. When Chalimoniuk went on a drinking binge that lasted for days, his wife arranged for him to enter a treatment program. However, before he was admitted, he missed three days of work and tried to get those absences excused as FMLA leave. His doctor listed his period of incapacity as including the three days, but actual treatment didn’t start until later.

Chalimoniuk’s employer fired him for accumulating too many absences under the attendance policy, and he sued alleging all the time should have been counted as FMLA leave.

The 7th Circuit Court of Appeals disagreed. It quoted the FMLA regulation, which clearly states that while treatment time for substance abuse (including illegal drugs and alcohol) is covered, “absence because of an employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.” (Darst v. Interstate Brands, No. 04-2460, 7th Cir., 2008)

Final note: Alcoholism may be a disease, and treatment is covered when the employee is trying to beat the addiction. However, the behavior associated with the disease does not serve as an excuse for attendance problems. You also don’t have to tolerate on-the-job intoxication. 

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