Alcohol/Illicit Drug Abuse
martman99
56 Posts
Employer has a generic prohibition against the use of or being under the influence of drugs or alcohol wjile on the job. Employee has a cocaine addiction, alcoholism and depression issues as well. Has NOT been disclosed to Employer. Employer has constructive knowledge of these problems. If employee approaches Employer for medical leave, could he terminate on the basis of illicit drug use? I understand alcoholism may and can be recognized as a disability, does illicit drug dependency qualify?
Thoughts?
Thoughts?
Comments
The employee if she is interested in going through rehabiltaiton could do so while on FMLA leave. Her doctor would need to certify the drug addiction and then she would need to verify the program and work out the leave situation with th employer.
FMLA regulations state the following regarding substance abuse and the "right" of an FMLA qualified emplyee to take leave for rehabilitation [29CFR825.114(d)]:
"Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave."
[url]http://a257.g.akamaitech.net/7/257/2422/08aug20031600/edocket.access.gpo.gov/cfr_2003/julqtr/29cfr825.114.htm[/url]
If she doesn't qualify for FMLA leave, she may be able to take the rehab leave under ADA as a "reasonable accommodation."
>If employee approaches Employer for medical leave, could he terminate on the basis of illicit >drug use?
The answer to your question is yes; if you discover illegal use and confront the employee and he then raises the medical request flag. The disclaimer, however, is that you would be wise to have absolute proof of illicit drug use. Unless your state law, company policy or union contract requires it, you are not required to retain an employee who is a current user of illegal drugs. Current use of illegal drugs is not protected by either FMLA or ADA. Time off for treatment and how you recognize it afterwords may be. Whether you want to "work with" that individual who admits and requests consideration is another matter.
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