DUI - mandatory rehab

catherinetnc

quick question:
employee arrested for DUI this weekend - faces either jail or 4 month rehab (residential)

supervisor wants to terminate him now so that he can get replacement person going in his position -

what complications do you foresee (we are an at will (ha ha) state)

ADA? this is the first we heard he had a problem
FMLA? guess this could be covered - but the leave time would exceed 6 weeks

Thanks for any advice, as always!!!

Don D

I see neither FMLA nor ADA indications. Mandatory rehab indicates this is not his first DUI. Regardless, you are at liberty to terminate him and fill the position.

catherinetnc

[font size="1" color="#FF0000"]LAST EDITED ON 03-01-05 AT 11:12AM (CST)[/font][br][br]Don -
I love your replies -straight and to the point!

I found this while searching the forum -

Under the FMLA, this is considered a serious health condition:

(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. (this is direct from the CFR)

So, his leave, if he chooses detox by a provider of health care services, seems to be under FMLA.


Do you think whether the detox is court mandated or voluntary would matter in FMLA query?


UPDATE!
DUDE - you were right all the time -
has to be referred to treatment by a healthcare provider - not a judge!!! DUH!

Don D

It is also true that FMLA was not intended and will not result in the providing of a magic safety net for someone who would have been terminated or disciplined had it not been for FMLA. His grasping at an FMLA safety rope would not work if the employer would have intended to fire him for his actions.

The same would be true if an employee knew he was about to be caught in a firing offense, managed to get himself referred to rehab by a physician and thought he had escaped the termination hatchet.

HRinFL

I agree with The Don, ees cannot use FMLA as a way to circumvent discipline. You are addressing the ees behavior and can terminate.

One a side note, alcoholism is protected by the ADA, but only someone that is an alcoholic but is not drinking currently is covered. As soon as they begin drinking again, they are not afforded protection under the ADA. Goes for substance abuse as well.

catherinetnc

THANKS!!!