FMLA and ADA
The United States federal government has specific protections in place that make it so anyone who enters a treatment facility for drug or alcohol addiction is automatically protected against hiring discrimination and job loss. The acts that protect you (FMLA and ADA) are the Americans With Disabilities Act and the Family and Medical Leave Act.
Family and Medical Leave Act (FMLA)
The FMLA sets requirements for employers to allow you to take sick leave. Since addiction is a disease, employers must treat it the same way as any other illness. All businesses, federal agencies, and government agencies must provide 12 weeks of unpaid sick leave for their employees. However, there are some requirements that must be met first.
“Your company must allow you to have up to 12 weeks of paid leave for addiction treatment.” – FMLA
This is great news for anyone suffering from addiction while employed, however, there are some requirements that must be met first. While you cannot be fired or unpaid for addiction treatment while employed, you and your company must meet the following requirements:
- You must have been employed with the company for at least 12 months.
- You must have worked at least 1,250 hours during the 12 months prior to the start of FMLA leave.
- Your company must employ 50 or more employees within a 75-mile radius of the work site.
While you can’t be fired, the FMLA does not guarantee you will be paid during this time. One way to help supplement your income during this time is to apply for short-term disability. Short-term disability will guarantee you at least a portion of your pay while you are in treatment. In order to claim these protections, you will need apply for it.
How to Apply for FMLA
To apply for FMLA you will first need to make sure that you meet the above requirements. Then, you will need to inform your employer of your intention to take medical leave and that you wish to use FMLA. You may also inform them if you plan on applying for short-term disability. If you wish, you do not need to inform your employer that you are taking FMLA for addiction treatment. You are not allowed to begin taking unaccounted absences as these will not be covered by FMLA. If your employer refuses, you may be able to sue for discrimination.
“If your employer refuses to allow you the full 12 weeks of medical leave for addiction, or any other medical reasons, or you are penalized for your condition, you can sue for discrimination.”
If you also belong to a worker’s union, you may have additional protections in place. If your employer is contracted with a union, speak to your representative. You should be thoroughly prepared for entering treatment, and that starts with making sure your livelihood is protected.
Can You Be Fired for Going to Rehab?
If you do plan on using FMLA to cover rehab, you must give your employer prior notice. If you fail to do so, you will not be protected by the FMLA and can be fired. However, if the employer has an established policy, applied in a non-discriminatory manner, that has been communicated to all employees, and that provides under certain circumstances an employee may be terminated for substance abuse, then pursuant to that policy the employee may be terminated regardless of whether he or she is presently taking FMLA leave. Here is the outline of the law as dictated by the U.S. Department of Labor.
Serious Health Condition – Leave for Treatment of Substance Abuse
“Treatment for substance abuse may be a serious health condition if the conditions for inpatient care and/or continuing treatment are met.”
“FMLA leave may only be taken for substance abuse treatment provided by a healthcare provider or by a provider of health care services on referral by a health care provider. Absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”
“The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for substance abuse treatment. However, if the employer has an established policy, applied in a non-discriminatory manner, that has been communicated to all employees, and that provides under certain circumstances an employee may be terminated for substance abuse, then pursuant to that policy the employee may be terminated regardless of whether he or she is presently taking FMLA leave.”
“An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance abuse.”
The Americans With Disabilities Act
Similar to the FMLA, the Americans With Disabilities Act was designed to give American workers protection from debilitating injuries and illnesses. Thanks to the ADA, employees with disabilities are protected from being fired or discriminated against by companies, and to be provided with reasonable accommodations so they can do their work. According to the Society for Human Resource Management, alcoholism and drug addiction are considered as disabilities. However, unlike other disabilities, substance use disorders are only protected during the hiring process. That means that an employer may not discriminate when hiring a person with a potential substance use disorder, provided they are not currently using illicit narcotics.
However, employers may prohibit the illegal use of drugs and the use of alcohol at the workplace and it is not a violation of the ADA for an employer to give tests for the illegal use of drugs. Employer are also legally allowed to discharge or deny employment to persons who currently engage in the illegal use of drugs. Employees who do use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees as outlined in the Drug-Free Workplace Act of 1988 and rules set by federal agencies pertaining to drug and alcohol use in the workplace.