In a decision that may displease some substance abuse treatment advocates, the Seventh Circuit Court of Appeals has narrowly interpreted the Family and Medical Leave Act (“FMLA”) regulations in certain situations involving employees who are starting treatment for substance abuse.
The Darst Decision
A long-term employee with alcoholism in Darst v. Interstate Brands Corporation, was terminated when he exceeded by three days his employer’s maximum for absences under its point-driven attendance policy. He had a relapse and began drinking again, but he contacted his doctor almost immediately to request admission into a treatment program. He then waited several days to be admitted while his doctor confirmed his insurance coverage. The three days for which he was charged under the company’s attendance policy were after his initial call to his doctor to arrange treatment but before his hospitalization. The Seventh Circuit held that the employee was not entitled to leave under FMLA for those three days.
The FMLA regulations provide that FMLA leave in the case of substance abuse is available only for the period of time the employee is undergoing “treatment” as defined under the regulations. Specifically, excluded from the definition of treatment is the period of time the employee is incapacitated because of his/her condition. The court held that even if the employee had not been drinking during the three days he was absent before his hospitalization, those three days were not covered by the FMLA because “‘[T]reatment’ is a defined term that does not include actions such as calling to make an appointment…” nor does it include “any activities that can be initiated without a visit to a healthcare provider.” As a result, the employer was free to consider those three days as violations of the company’s attendance policy.
Lessons for Employers
If Darst’s absences had resulted from a physical or mental “serious health condition” other than substance abuse, they likely would have been considered covered under the FMLA if the employee had provided appropriate medical certification that he was unable to work during those days. Not so when the “serious health condition” is substance abuse. The Seventh Circuit now has defined “treatment” in a very specific and limited way, making it somewhat easier for employers to determine which absences are FMLA protected and which are not.
The court cautioned that its decision did not address other claims that Darst might have asserted in connection with his absences related to substance abuse. While strictly applying an attendance policy to employees with substance abuse health conditions may be acceptable under the FMLA, there is still a question regarding an employer’s potential obligations under the Americans with Disabilities Act (“ADA”). Alcoholism is considered a disability under the ADA and employees with disabilities are entitled to reasonable accommodation. The Seventh Circuit previously has held that a required accommodation may include time off beyond that provided under the FMLA. However, ADA regulations generally permit an employer to hold employees with substance abuse problems to the same performance and conduct standards—including attendance standards—that apply to all employees.
Because Darst did not include a claim under the ADA, the Seventh Circuit did not examine whether the employer might have been required to excuse Darst’s three days off while he waited for rehabilitation placement as an accommodation under the ADA. Darst thus teaches employers that even if a substance-related absence is not covered under the court’s helpful new interpretation of FMLA, employers still should carefully analyze whether such absences are covered under the ADA.