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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