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Do FMLA rights kick in before alcohol rehab...or at check-in?
http://www.businessmanagementdaily.com/articles/15960/1/Do-FMLA-rights-kick-in-before-alcohol-rehabor-at-check-in/Page1.html
Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments. 
By Mindy Chapman, Esq., Mindy Chapman & Associates
Published on 1/17/2008 - 1:00pm
 
Employees with “serious health conditions” can take FMLA leave. But when does that serious condition take effect for employees who need alcohol treatment? Is it when the employee first contacts a doctor to get a referral for in-patient treatment … or is it at the time of check-in? Can you fire an employee for absenteeism prior to going in to rehab? One court ruling last week says you can ...

Employees with “serious health conditions” can take FMLA leave. But when does that serious condition take effect for employees who need alcohol treatment? Is it when the employee first contacts a doctor to get a referral for in-patient treatment … or is it at the time of check-in? Can you fire an employee for absenteeism prior to going in to rehab? One court ruling last week says you can:

Case in Point: An Indiana food company had a point-based absence system that called for termination after workers accumulate 32 points. The company didn’t count absences related to FMLA leave.

Krzysztof Chalimoniuk, a baker at the company for 15 years, had wrested with alcoholism for some time. One Friday, he went on a major binge. He failed to appear at work for the next three days, which pushed him over the 32-points limit.

Over that binging weekend, Chalimoniuk’s wife realized he was relapsing and contacted a local hospital to ask if she could bring him in for treatment. After dealing with doctors and insurance issues for several days, he was admitted to the hospital, where he received inpatient treatment for a week.

Chalimoniuk returned to work with documentation from physicians that he was treated for alcoholism. He claimed his FMLA-covered absences began during that lost weekend (July 29) because he and his wife had contacted the doctors for treatment referrals over the weekend. The company’s HR person dug deeper and found that he wasn’t actually admitted to the hospital until Aug. 4, which was after his last-strike absences.

The HR person contacted the U.S. Labor Department for help. Their answer? Go read the FMLA regulations (section D) relating to substance abuse. Gee thanks!

After reading the regs, she decided that Chalimoniuk’s absences during the three days before his hospital admission were NOT protected by the FMLA because they weren’t for treatment. Therefore, he was charged for the three days of absences, which added up to termination. Chalimoniuk filed a lawsuit claiming his firing was an illegal denial of his FMLA benefits. (Darst v. Interstate Brands Corp., 7th Cir., No. 04-2460, 1/11/08).

How did this case end ... and what lessons can be learned? The big question: Does FMLA coverage begin when the actual rehab treatment starts, or when the person make the call?

The FMLA regulations (Section 825.114(d)) say substance abuse can be considered a serious health condition covered by FMLA only if certain conditions are met. Specifically, FMLA leave “may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”

Chalimoniuk argued that his doctor-provided FMLA certification form said he was in treatment beginning July 29, and it was his employer’s duty to notify him if they believed the form was deficient (thus giving him a chance to fix any problems).

But the court said the form used by Chalimoniuk’s doctor “does not contemplate the special issues relating to substance abuse.” The form didn’t inform the doctor that, unlike the situation with other health conditions, a worker suffering from alcohol or substance addiction qualified for FMLA leave “only for incapacity caused by treatment and not for the incapacity caused by the addiction itself.”

The court rejected the employee’s argument that he was in treatment before he was hospitalized, noting that Chalimoniuk wasn’t examined or evaluated by anyone before Aug. 3.

3 Lessons Learned … Without Going to Court

1. Establish a clear FMLA policy. Make sure your company’s FMLA policy addresses which absences are covered under the FMLA and which are not—especially when it comes to treatment for alcoholism. Tell employees to contact the HR department or other authorized personnel for clarification when in doubt.

2. Look at medical reports closely. As in this case, the HR person was astute and picked up a conflict. Such conflicts in dates and information may be a red flag for eligibility problems.

3. Be consistent. The employer didn’t provide FMLA protection until treatment began. It is critical that employers are consistent with such employment decisions when faced with them again or they may be subjected to liability.