FMLA Leave for Alcoholism Treatment

By Thomas McKinney

Can I take FMLA leave for treatment of alcoholism or drugs?  Under the FMLA, eligible employees are entitled to up to twelve weeks of unpaid leave per year for absence due to, among other things, a “Serious Health Condition” that renders the employee unable to perform the functions of his or her job. 29 U.S.C. § 2612(a)(1)(D).  To ensure the entitlement, the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided.” 29 U.S.C. § 2615(a)(1).  When an employee alleges a deprivation of the substantive guarantees of the FMLA, the employee must establish, by a preponderance of the evidence, an entitlement to the disputed leave.

A Serious Health Condition is defined as an illness, injury, impairment, or physical or mental condition that involves either (1) inpatient care in a hospital, hospice, or residential medical facility; or (2) continuing treatment by a healthcare provider. 29 U.S.C. § 2611(11). Although the statute itself does not specifically address whether alcoholism or substance abuse constitute serious health conditions, Department of Labor regulations that implement the statute provide the answer. Substance abuse may be a Serious Health Condition under certain conditions but FMLA leave may only be taken only for treatment for substance abuse. 29 C.F.R. § 825.114(d). On the other hand, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.

For more information, please read Alcoholism or Drug Abuse as a Medical Disability Pursuant to the FMLA.

March 14, 2010 – Tom McKinney – Castronovo & McKinney – New Jersey Discrimination Attorneys

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.