While substance abuse treatment may qualify for FMLA leave, absence based on employee’s substance abuse does not

For the week of January 14, 2008

Under the Family and Medical Leave Act (FMLA), an eligible employee is entitled to up to 12 weeks of unpaid leave for – among other things – a “serious health condition” that keeps the employee from performing the functions of his or her job. When an individual alleges that his rights under the FMLA have been violated, that person must first establish some entitlement to the disputed leave. The 7th U.S. Circuit Court of Appeals recently upheld the dismissal of a case in which an employee alleged that he was improperly denied FMLA leave for substance abuse treatment. The Court based its decision on the fact that the employee was not entitled to leave for the specific dates in question, since he had not yet started his actual treatment on those dates. Darst v. Interstate Brands Corp., et al., 7th Cir., No. 04-2460, Jan. 11, 2008.

Krzysztof Chalimoniuk’s former employer, Interstate Brands Corporation (IBC), has a points-based system for tracking absenteeism. Employees are disciplined for absences based upon the number of points accumulated. Points are assigned to occurrences depending upon various circumstances, including whether the employee called in advance of the absence, whether the absence was a partial day or full day, or whether it simply involved a tardy or a failure to complete a shift. On July 29, 2000, Chalimoniuk had accumulated 23 points. His discharge trigger was 32 points. Under IBC’s policy, no points are assigned for absences under the FMLA. An accumulation of points leads to progressive discipline, up to and including discharge.

On Friday, July 28, 2000, Chalimoniuk, who had been struggling with alcoholism for some time, drank a quantity of alcohol sufficient to lead him to lose his memory for two or three days. On July 29, his wife called a local hospital to inquire about substance abuse treatment for her husband. During the following days, the hospital communicated with Chalimoniuk and his insurance company, and finally admitted Chalimoniuk on August 4. He remained there until August 10, when he completed his treatment.

At some point, Chalimoniuk requested FMLA paperwork from IBC, and returned the completed forms on August 11. The hospital physician who treated Chalimoniuk indicated that the duration of the incapacity was “7/29 – 8/11.” However, the insurance form submitted by Chalimoniuk indicated the disability dates as “7.29.00 to 8.10.00.” Because of the discrepancy, IBC checked with the hospital to clarify the actual admission dates, and found that Chalimoniuk had not been admitted until August 4. Under the Department of Labor regulations related to the FMLA, “leave may only be taken for treatment of substance abuse by a health care provider. . . . [A]bsence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.” Because Chalimoniuk had been assigned to work for three of the days between July 29 and August 4, and because he was absent but not yet in treatment on those days, he accrued an additional 10 points under IBC’s system, which resulted in his discharge from employment.

Chalimoniuk sued IBC, claiming violation of the FMLA. The lower court dismissed the claim, finding that Chalimoniuk’s absences between July 29 and August 4, combined with his prior absences, put him over the point limit under IBC’s policy. The Seventh Circuit affirmed, and agreed that under the regulations, Chalimoniuk lacked evidence that established his entitled to FMLA leave. This case turned on the question of whether Chalimoniuk was being “treated” during the period prior to his hospitalization. While the hospital physician submitted an affidavit stating that treatment for alcoholism begins when the first step toward assistance is taken, the Court found that the calls made by Chalimoniuk and his wife to the hospital and the insurance company were insufficient to fall within the FMLA’s definition of “treatment.” Therefore, Chalimoniuk’s absences were unexcused.

However, employers should carefully review requests for FMLA leave made for substance abuse treatment in order to determine whether the individual met with a health care provider or received any other actual medical treatment prior to formally entering a recovery program. If such “treatment” occurred, that period may be included as FMLA leave.