April 11, 2016
Addiction affects everyone to some degree. If the addiction is severe enough—and perhaps requires rehab—addiction can affect employment. The Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are both federal laws that prohibit an employer from firing an employee for attending rehab or seeking treatment. An employer’s own policies or a union contract may also protect employees who attend rehab. However, an employer may terminate an employee for another valid reason such as: coming to work high or drunk, using on the job, increased absences from work, or decreased performance.
The law does not let an employer look back in time when assessing an employee, it looks at an employee’s performance at the time of termination. Therefore, if you are struggling with addiction and are in need of treatment, it is necessary that you confidentially inform your employer that you are seeking treatment and discuss what accommodations you need. The law will then require that your employer assess your performance from the time you sought treatment when and if they consider termination.
Under the FMLA, an employee can get up to 12 weeks of leave (either paid or unpaid) every 12 months in order to handle a serious health condition that prohibits him from working. Drug and alcohol treatment qualify as a legitimate health-related reason under the FMLA.
After an employee is granted a leave of absence, their employer must hold the same or equivalent position (meaning it has the same pay, benefits and status, etc.) until the authorized period of leave ends. The employer is also required to continue to provide and contribute their portion towards the employee’s health insurance coverage. The employee is required to pay their portion of the health insurance premium even if the leave granted is unpaid. However, the employee’s health insurance cost may be paid in installments or in full upon a return to work.
FMLA has a formal process for requesting a leave of absence. The law is complicated and if the procedures are not followed precisely, an employee may not be protected. It may be best to consult with an employment lawyer in your state prior to entering rehab and to speak with your employer to ensure that the law covers you. The FMLA does not protect all employees. In order to be eligible for FMLA leave, an employee must have worked at least 1250 hours over the past 12 months (if that employer is within 75 miles and has more than 50 employees).
The ADA also protects employees from discrimination because of a disability. Employers with 15 or more employees must comply with the ADA. The ADA protects an employee if the employee has a disability, and the employee is qualified for his or her position with (or without) a reasonable accommodation. Chemical dependency can be considered a disability. Employees who are currently in a rehabilitation program or have been successfully rehabilitated are covered under the ADA.
The ADA may require that reasonable accommodation is made. This could include changing a work schedule to allow an employee to attend AA/NA meetings, providing treatment or counseling, or allowing an employee to take a leave of absence to attend rehab. Employers are permitted to ensure a safe working environment and are allowed to test employees for drugs or alcohol. The ADA also protects applicants by prohibiting potential employers from asking about past drug or alcohol abuse or treatment for drug and or alcohol dependency during the hiring phase.
It is important to know your rights under ADA. If you feel that you’ve been discriminated against you can file a charge of discrimination with the U.S. Equal Employment Opportunity Commission. You can also contact PCW Law Firm with any questions.