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FMLA Leave for Treatment of Substance Abuse

Complying with the FMLA rules can also be a confusing issue. This question is also a frequent one.

Q: Do I really have to approve leave for treatment of substance abuse?

A: Substance abuse may be a serious health condition if one of the tests for establishing a "serious health condition" is met. However, FMLA leave may be taken only for the treatment of substance abuse by a healthcare provider or by a provider of healthcare services on referral by a healthcare provider. Absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave. This distinction is important.

Treatment for substance abuse does not prevent an employer from taking employment action against an employee. However, an employer may not take action against an employee because the employee has exercised his or her right to take FMLA to leave for treatment.

If the employer has an established policy, applied in a nondiscriminatory manner, communicated to all employees, and that provides under certain circumstances an employee may be terminated for substance abuse, the employee may be terminated pursuant to that policy even if the employee is presently taking FMLA to leave.

Note: An employee may also take FMLA to leave to care for a covered family member who is receiving treatment for substance abuse.