Substance abuse (whether it be related to alcohol or drug use) is a potentially serious workplace issue that can quickly become extremely complicated. It is very important for all Employers to keep in mind that substance abuse can, in and of itself, be considered as a serious health condition and as such, may come under coverage of the Family Medical Leave Act and allow the Employee to be qualified for FMLA Leave.

Substance abuse issues and FMLA Leave must be viewed in the context that FMLA Leave for substance abuse will only occur when the individual is receiving treatment for substance abuse as provided and administered by a healthcare provider. Since FMLA Approved Leave is for treatment only, an Employer need not tolerate or excuse absences not covered by FMLA Leave because of an Employee’s use of a substance. While an Employer may not take action against an Employee because they are exercising their FMLA rights, an Employer has the right to take employment action for substance abuse assuming that an Employer has an established policy that is applied in a nondiscriminatory manner and has been communicated to all Employees that establishes that substance abuse (the use of the alcohol and/or drugs that affect the workplace) may be grounds for termination.

While an Employee may be perfectly entitled to the use of FMLA for substance abuse treatment, once that Employee has returned to work and establishes a violation of policy for use of substances at work or the failure to report to work, even though the Employee may have “fallen off the wagon” and relapsed into his/her substance abuse, the Employer has every right, assuming the existence of a communicated aubstance abuse policy, to invoke that policy and terminate the individual for his/her actions. The Employer is not terminating the individual because of their treatment and/or use of FMLA to participate in a treatment program, the Employer is terminating the individual for their actions effecting the Employer due to their actual substance abuse.

While Employers must try to balance the goals of a safe and healthy work environment with the understanding that substance abuse can be a serious health condition, Employers should keep in mind that once the FMLA substance abuse treatment leave ends, the involved Employee would still be subject to legally enforceable policies of the Employer with regard to workplace violations for their substance abuse.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com