Do FMLA Regulations cover leave while drunk?

by on January 27, 2009 · 0 Comment POSTED IN: HR Info Center

Employee FMLA rules, FMLA abuse and corporate response

“You can’t fire me for missing work,” machine operator Ken Longworth told HR Manager Shelley McGee. “I’ve got it in black and white from my doctor – I was in treatment for alcohol abuse.”

“That’s what your FMLA form says,” Shelley replied. “But I checked with the hospital, and you weren’t admitted for treatment until Thursday two weeks ago – after you’d already missed three days. So Monday through Wednesday you were absent without a valid excuse,” she went on. “And that puts you way over the allowable absence limit under FMLA regulations.”

“Look, I admit I slipped on those three days,” Ken said. “But I called my doctor as soon as I came to. And after the hospital I went straight into AA. I’m clean and I intend to stay clean. You don’t have to do this.”

“I’m sorry,” Shelley said. “I wish you well in getting your life back on an even keel. But we aren’t going to make an exception to our FMLA policy just because you went on a three-day spree and missed work as a result.”

What the FMLA form said

“OK,” Ken said, his voice growing harsher. “I can play hardball, too. “You’re flat out denying me FMLA leave for no reason.” He pointed at the form lying on Shelley’s desk. “It says right here, ‘absence plus treatment for serious health condition.’ Sure, I’m a drunk. But I have the right to get treatment without losing my job. And by the way, I don’t think you had the right to call the hospital and check up on my doctor’s note.”

“We obviously disagree on this,” Shelley said. “So I guess you’ll do whatever you have to do.” Ken sued the company under FMLA laws.

Did he win?
No, Ken didn’t win his suit. Alcoholism and substance abuse are indeed serious health conditions that may create FMLA eligibility, the court noted. But FMLA regulations distinguish between treatment for alcoholism and the effects of the alcoholism itself. While the treatment is covered by FMLA regulations, the effects are not. So if Ken missed work because he was drunk, hung over, or otherwise incapacitated by alcohol abuse, that wasn’t enough to win him FMLA leave. And HR Manager Shelley correctly broke down the days Ken missed into legitimate treatment days – covered by FMLA rules – and non-covered days.

Who makes the call

Shelley did make one mistake. Under the FMLA regulations, she shouldn’t have called the hospital herself. (DOL has proposed changing that clause in the Family Medical Leave Act, but the change hasn’t gone through yet.) She should have asked a health care provider to contact Ken’s doctor for clarification of the time Ken actually spent in treatment. (The reason for the three-day discrepancy: Ken’s doctor started the count from the day Ken called for an appointment, not the day he entered the hospital.) Because Ken had no right to leave for the three days, Shelley’s error didn’t expose the company to penalties under FMLA law. But in other circumstances, the mistake could have been costly.

Cite: Darst v. Interstate Brands Corp., No. 04-2460, 7th Cir., 1/11/08. Fictionalized for dramatic effect.

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