Wednesday, October 10, 2012

Fired For Going to Rehab?

For employees faced with substance abuse issues, the decision to check into a rehabilitation center is never easy. How will the employee/patient survive financially while out of work? Faced with the need to attend drug or alcohol addiction treatment, either as a resident or on an outpatient basis, most people will be unable to continue working in the interim. Maintaining a job during rehab is a big concern for many people; from all walks of life.  Holding onto a job may seem more important than rehab, but failing to get treatment usually does not end well for the addict or alcoholic. Untreated substance abuse follows its victim and his or her problems pile up on them in rapid succession. Most who decide against treatment eventually get fired or destroy their career path. So, what is the best way to handle the issue of substance abuse treatment with one’s employer?

After all an employer is rightly concerned about the employee's substance abuse and possible absence from work for treatment. The employer is faced with being shorthanded while the employee is in treatment. In most cases, in am employment-at-will jurisdiction absences or active drug or alcohol use/abuse can often be a lawful reason for firing an employee. For example, if an employee misses work for several days as a result of addiction, his or her job would not be protected.

Many employers have confidential Employee Assistance Programs (EAP) with policies that allow for employee retention after substance abuse treatment. However, employers are not required to have such programs. For employees with substance abuse issues, the Family and Medical Leave Act (FMLA) can be of assistance. The FMLA provides covered employees of covered employers with up to 12 weeks of leave every 12 months in order to handle a serious health condition that prohibits him from working. This includes addiction treatment.

The employer is required to return the employee to the same or similar position to the one held at the time the leave began. However, the FMLA applies only to companies that employ fifty or more employees. Additionally, to be eligible, the employee must have worked for 12 months for the employer and completed at least 1250 hours of employment in the period leading up to the FMLA leave.

If substance abuse is an issue for you, take care of yourself and realize there is hope in the form of both employer sponsored programs such as the EAP, and consider exercising your rights under the  FMLA.  Also, remember that a recovering (and not currently using) drug addict may be covered by the Americans With Disabilities Act (ADA) which prohibits discrimination against employees or applicants on the basis of disability.  In certain cases, a former drug user may be a qualified individual with a disability.  The ADA covers employers with 15 or more employees.  Please contact an experienced local employment attorney if you feel your rights under the FMLA or the ADA are being affected by your employer. 

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