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The Family and Medical Leave Act does not cover employment absences caused by substance abuse “regardless if substance use leads to serious consequences that lead to hospitalization.” A U.S. District Court in Wisconsin recently held, however, that absence for treatment required for the after-effects of a weekend of binge drinking was covered by the FMLA. The facts of this case leading to the seemingly inapposite outcome reveal lessons for employers. EMPLOYEE GIVEN LAST-CHANCE AGREEMENT The facts in Domnick v. Ver Halen, Inc., No. 02-C-375-X, make it clear that Stephen Domnick had a history of alcohol-related problems with his employer. Domnick began working for Ver Halen in August 1993 and by September 2000, he was given what is commonly referred to as a “last chance agreement.” These agreements are common in situations where an employee has a substance abuse problem that could lead to his/her termination. Rather than take this step, the employer will spell out a series of requirements for the employee to continue in his/her employment. These frequently include an agreement to seek counseling, or even in-patient treatment; an agreement to fully disclose the results of the treatment (usually through the release of records); an agreement by the employee to undergo random drug or alcohol testing; and, perhaps most importantly from the employer’s perspective, an agreement that any relapse or refusal to take a random test will result in termination. Domnick was given such a letter on Sept. 11, 2000. The letter said, in part: “we will require that you submit to random drug/alcohol screening as well as successfully complete an alcohol treatment program, such program to be approved by both you and Ver Halen.” Ver Halen, however, did little follow up to this letter. Domnick was rejected from the inpatient program to which he applied and, although there was some factual dispute as to Ver Halen’s response (Ver Halen saying that it warned Domnick that continued employment was conditioned on the successful completion of a treatment program — Domnick contending that nothing was said), Ver Halen did not strongly enforce its treatment “requirement.” Further, Ver Halen never administered any drug or alcohol testing to Domnick following its letter. BINGE DRINKING LEADS TO HOSPITALIZATION Late in the night on May 8, 2001, Domnick was admitted to the hospital complaining of severe stomach and back pain following a weekend of heavy drinking. Domnick was treated for alcoholic pancreatitis and was given medication to combat alcohol withdrawal symptoms. The next morning, Domnick called his supervisor to say that he was in the hospital and could not report for work. Two days later, May 11, Domnick called to say that he was ready to return, at which point he was informed that he had been terminated as of May 9, his first day of absence. The termination letter said that Domnick had been terminated for his unexcused absence on May 8 and 9 and his failure to complete the alcohol treatment program described in the letter of Sept. 11. SUBSTANCE ‘USE’ VERSUS ‘TREATMENT’ Domnick brought suit under the FMLA, claiming that he had been denied a leave of absence for a “serious health condition.” The critical issue raised by Domnick’s FMLA claim was whether his absence was for substance “use” or for “treatment.” The former is explicitly not covered by the FMLA, the latter clearly would be when, as here, it was necessitated by a “physical or mental condition” that involves inpatient care. Ver Halen argued that Domnick’s hospitalization, which was the result of his use of alcohol, was to “salve the physical consequences of a drinking binge” rather than for treatment. As such, his leave was not protected by the FMLA. While the regulations to the act allow leave for “treatment for substance abuse,” absence “because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.” 29 C.F.R. �825.114(d). The court recognized the syllogistic nature of Ver Halen’s argument (and the circular use of the terms “treatment” and “substance use” in the regulations). Ver Halen would have had “treatment” confined exclusively to chronic dependency, rather than the acute issues presented by Domnick. While this may be the way the general public understands the phrase “treatment for alcohol abuse,” the court found this to be too limited a definition, and one not supported by the regulations themselves. DEFINITION OF ‘TREATMENT’ TOO NARROW If “treatment” were limited to chronic dependency alone, then treatment for the effects of long-term use, such as cirrhosis, would not be covered by the FMLA. This would clearly be too narrow a reading of the regulations. Thus, the court found that Domnick’s hospitalization from May 8 through 11, although related to his alcohol use, was covered by the FMLA. Ver Halen also argued that Domnick’s failure to undergo the treatment referenced in the Sept. 11 letter supported its right to terminate his employment. The court noted the remarkable coincidence of Ver Halen’s enforcement of this part of the letter as it related to his (now FMLA-protected) leave. This raised an issue of fact which precluded summary judgment. The Domnick case illustrates the caution with which employers must approach substance abuse issues, particularly when they occur off-site. It also again reminds employers (and their counsel) to take action at the time the employee deviates from policy or standards. Had Ver Halen forcefully required that he enroll in the alcohol treatment program specified in its Sept. 11 letter, it would have either had an alcohol-free employee or one who had agreed to be terminated (although the circumstances of the letter may have raised ADA issues). Instead, they tried to use the letter when it became convenient, which the court questioned. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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