FMLA, alcoholism and jail time

mkerker

We have an employee who has just requested FML for getting treatment for alcoholism. He has also stated that he will be required to do some jail time in addition to getting treatment. My understanding is that the time missed for treatment is covered under FMLA, but jail time is not. This employee has used up all his vacation and sick time. Since jail time is not covered under FMLA, can he be terminated for excessive absences?

Still Need Coffee

Do you have any sort of substance abuse policy that would address how your company deals with jail time? Also, what do your state laws say? Some states have laws prohibiting discrimination against employees who have been arrested or convicted unless the crime is job related.

Those are the two places I would start.

mkerker

Our policy manual only deals with substance abuse on the job site or affecting job performance which is considered cause for disiplinary action including termination. I am not aware of any laws in our state regarding termination for lack of job performance caused by time served in jail. So, am I violating any FMLA rules, or are we justified legally to terminate this employee.

Still Need Coffee

My gut says you'd be within your rights, but is he getting treatment for the alcoholism while in jail? If so, it may fall under FMLA, but I'll be honest, that's just a guess.

Any other forumites out there have some insight?

NaeNae55

Just curious, but how long is he in for?

tmperry

[QUOTE=Still Need Coffee;721712]My gut says you'd be within your rights, but is he getting treatment for the alcoholism while in jail? If so, it may fall under FMLA, but I'll be honest, that's just a guess.

Any other forumites out there have some insight?[/QUOTE]

I'm think my line of thought on this is where yours is also...If he's in a rehab program that runs consecutively with his jail time, then you'd need to disregard the "where" he's doing his rehab treatment. If it's court ordered, then it more than likely is.

mkerker

We're not sure yet as to how long his jail time will be. It is possible that it may be some kind of work release where it is a day or two per week. From what I understand any treatment he will be receiving is separate from any jail time, not combined with.

NaeNae55

If it is work release, they may well have him in jail during his days off so he doesn't lose his job.

kdigangi

My opinion is pretty much the same as yours and tmperry. You can terminate him for failure to come to work while he is in jail unless he's in an ongoing treatment program while there. If he's not in jail during work hours and does come to work, you shouldn't terminate him. A recovering alcoholic is considered disabled under ADA as well as entitled to FMLA. I'd also advise you to check your state laws, but any I'm familiar with only prohibit discriminating against someone with a past conviction, not someone who can't come to work because he is serving time.

ACU Frank

As the husband of a regional administrator for our state's division of probation and parole, I can tell you it's almost a certainty that if he's doing time because of an alcohol-related offense, he's probably been enrolled in a 'program' while he's there. It may be patently ineffective and worth approximately diddly squat, and he may not actually have his first real treatment 'session' until he gets out, but he's probably enrolled nonetheless. What's your comfort level with envelope pushing?

neveradull

After termination and in court he says "They retaliated against me when I asked for FMLA to get treatment for my disability." I think its time to consult with an attorney.:)

ptripp

Just an FYI - he probably can get work release and then would not miss time unless this is not his first offense and he is in the big house.