The federal Seventh Circuit Court of Appeals (Chicago) has ruled that an employee who missed work due to alcoholism was not entitled to FMLA leave for the time he missed before seeking treatment and in order to avoid being fired for excessive absenteeism. In Darst v. Interstate Brands Corp., the employer maintained an absenteeism policy that recorded "points" whenever an employee missed work. If an employee accumulated 32 points, he/she would be fired. The employee in question had accumulated 23 points prior to a subsequent series of alcohol-related absences during which time he entered into treatment for his alcoholism. When the employee sought FMLA leave for the time he received treatment, the employer called the employee's treatment center and verified the employee entered treatment after there were enough points to warrant termination. When the employer fired the employee, he sued under the FMLA, claiming the employer had improperly terminated while on leave and had improperly contacted his health care provider regarding his alleged FMLA leave.

The court found that employees are not entitled to FMLA leave for absences caused by substance abuse—as opposed to absences for substance abuse treatment—and upheld the employer's decision to terminate the employee. While the court also noted that the employer's effort to obtain information from the employee's health care provider was technically improper, it ruled that such conduct did not violate the FMLA because the employee was not entitled to FMLA leave, having already been terminated.