FMLA/DUI sentence

Dmurphy · March 2003

One of our employees received a two week sentence in a treatment facility after her second DUI offense. She tells us that she is seeing a mental health professional and going to AA. Will that two weeks mandated by the court be an FMLA event, if her physician or counselor says that she is being treated for alcoholism?

Don D · March 2003

Depending on whether you accept counselor assessments, that one may need the written support of a physician. But, I'd think it's certifiable if a doctor says he/she needs to be in the program. I don't think it would meet FMLA definitions if it were simply a court ordered punishment. Once the program is completed, you may have an automatic ADA qualifier on your hands as well. I'll go ahead and advise you now, in that event, to accommodate her with some leniency if she needs to attend noon meetings and be a few minutes late returning.

vmiller MO · March 2003

29 CFR section 825.114 provides that treatment for "substance abuse" can qualify for FMLA leave if other provisions of that section are met. In addition, the regulation states that "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 of a health care provider." You then need to look at 29 CFR section 825.115 to determine who a health care provider is and as a result you will also have to look to your state law. The court is probably not a health care provider, but your state may allow a "clinical social worker" to be a health care provider. As you can see, the legal answer to your question is not crystal clear and I suggest that you ask your employment/labor attorney for an opinion.

It is important that you find such an answer because if you do not allow FMLA leave and you terminate the employee, the employee may file suit claiming he/she did not get FMLA rights. Then again, if you put the employee on FMLA leave and it is not an FMLA reason, you have technically violated FMLA by diluting the employee's statutory leave rights.

From my personal perspective, I agree with Don.

LindaS · March 2003

In the state of WI, any health care provider that is certified in the state falls under the "Health Care Provider" provision of FMLA so here, if the counselor is licensed, we would have to accept their assessment. A person being treated for alcoholism is covered under FMLA so with the proper certification it would be covered. I also agree with Don in allowing some leniency for her to attend treatments making sure you provide her with the notice that her time off will be counted as FMLA.

On thing to remember is that, although FMLA allows time off for treatment of alcoholism, time off due to an employee being under the influence is NOT.

FMLA/DUI sentence

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