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Must we grant time off for rehab?

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in Employment Law,Human Resources

Q. An employee recently confided to us that he has a drug problem and would like to take several weeks off to check into a rehabilitation program. May we deny his request?

A. California Labor Code §1025 requires employers with 25 or more workers to “reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program,” unless it would impose an undue hardship.

Under section 1027 of the code, an employee may choose to use available sick leave, but the employer is not required to provide paid time off for participating in a drug rehabilitation program.

Note that §1025 specifically states that employers may refuse to hire or may terminate a worker with a drug or alcohol problem if he or she is unable to perform the job duties or endangers his or her safety and health or the safety and health of others. Moreover, the ADA also ex­­cludes from coverage individuals currently engaged in illegal drug use.

Thus, since this employee is seeking to voluntarily enter a rehabilitation program, the company may be required to accommodate this request by providing unpaid (or sick) leave.

Unfortunately, §1025 does not define undue hardship and, thus, there is no definitive guidance on the standard that must be met for an employer to be relieved of this duty.

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