An employee who was hospitalized and treated for alcohol dependence was properly terminated for missing three days of work prior to being hospitalized (Darst v. Interstate Brands Corporation, No. 04-2460, 7th Cir., 1/11/08). The company had a point system for attendance and the employee surpassed the number of points that he was allowed when he drank so much over the weekend and then missed three days of work. He and his wife tried to get him admitted to a treatment program.

According to the Seventh Circuit Court of Appeals, he was not entitled to Family and Medical Leave (“FMLA”) during those three days because although substance abuse may be a Serious Health Condition, FMLA leave may only be taken for treatment for substance abuse. Absence due to the employee’s use of the substance, rather than the treatment, does not qualify for FMLA leave. The fact that the employer improperly contacted the health care provider directly and did not inform the employee that his FMLA certification was incomplete was inconsequential. The Court found that there could be no interference with an employee’s FMLA rights if the employee had no right to FMLA leave on the three days in question.