Mar 18, 2008

Substance Abuse Not a Serious Health Condition

A recent Seventh Circuit case distinguishes substance abuse from treatment for substance abuse in determining whether an employee has a serious medical condition under the FMLA. In Darst v. Interstate Brands Corporation (available here), the employee, an alcoholic, suffered a relapse and sought treatment at a hospital. Although he first contacted the hospital on July 29, he wasn't admitted until August 4. In the interim, he missed three days of work.

The employee's medical certification form (similar to the WH-380) was completed by the treating physician, who certified that the employee had a serious health condition involving "absence plus treatment." For the approximate date the condition commenced, the doctor wrote, "'7/29-8/11. Return 8/14.'" But this didn't match what appeared on an insurance-related form, and the employer called the hospital to reconcile the difference. Discovering that the employee wasn't admitted to the hospital for those three days, the employer didn't count them as FMLA-protected, and under its "point" system for absences, his employment was terminated.

The Seventh Circuit found for the employer, rationalizing, "absence because of the employee's use of substance, rather than for treatment, does not qualify for FMLA leave." The employee didn't provide any further explanation for the three-day absence, other than treatment of alcoholism, so the court determined the employer was within its rights to fire the employee.

There's another important point to this case that's easy to miss: the employer discovered the error by violating the FMLA when it contacted the hospital directly. At most, the employer was entitled to have its health care provider contact the employee's health care provider. The court recognized the error, but further determined that the FMLA didn't provide a remedy because the action didn't interfere with the employee's exercise of FMLA rights.

Since this case was decided, the FMLA regulations have changed to allow employers to make direct contact with employee health care providers, in certain circumstances. To learn more about the new rules, see Nolo's article New FMLA Regulations Change Rules on Notice and Certifications.

Alayna Schroeder

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