E-Newsletter

May 2008

Scheduling a Medical Appointment Does Not Constitute "Treatment" for Federal FMLA Leave for Substance Abuse

Dean F. Kelley, Esq.
dfk@kclegal.com

The Seventh Circuit Court of Appeals recently upheld the dismissal of a federal FMLA lawsuit filed by an employee who was terminated after missing several days of work due to his alcoholism problem. The employee requested FMLA leave for days of work he missed before he entered into "treatment" for alcohol dependence and acute withdrawal syndrome.

Krzysztof Chalimoniuk was a struggling alcoholic who, by his own account, drank so much over the weekend of Friday, July 28 through Sunday, July 30, 2000 that he lost his memory for two or three days. His wife contacted a local hospital on Sunday, July 29 to see if she could bring him in for treatment. Chalimoniuk was scheduled to work on Monday, July 31; Wednesday, August 2 and Thursday, August 3, but did not show up for any of these assigned shifts even though he was not admitted into the hospital for treatment until Friday, August 4, where he remained until August 10.

While he was in the hospital, his wife requested FMLA leave forms. The treating physician stated that Chalimoniuk was incapacitated from July 29 to August 14, 2000. After the Company's human resources manager noticed discrepancies in the employee's FMLA Medical Certification and insurance documentation submissions, she contacted the hospital without the employee's permission (technically a violation of the FMLA regulations) to find out when Chalimoniuk was actually admitted to the hospital for treatment. Because he did not begin "treatment" until August 4, his absences on July 31, August 2 and August 3 were not FMLA approved absences. Chalimoniuk's absences on these three days, combined with his prior absences, put him over the limit for absenteeism under the Company's attendance policy. Therefore, on August 15, when Chalimoniuk returned to work from his leave, he was terminated for excessive absenteeism.

The Court of Appeals upheld the lower court's dismissal of the employee's FMLA lawsuit because he could not show he was entitled to FMLA leave when he missed work on July 31, August 2 and August 3. Based on the FMLA regulations, an employee suffering from alcohol or substance addiction is entitled to FMLA leave only for incapacity caused by treatment and not for incapacity caused by the addiction itself. The regulation states:

Substance abuse may be a serious health condition if the conditions of this section are met. However, FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.

According to the Court of Appeals, under the FMLA, the definition of the term "treatment" would include "examinations to determine if a serious health condition exists and evaluation of the condition." However, treatment does not include simply calling a health care provider to make appointments for future treatment or any other "activities that can be initiated without a visit to a health care provider." As a result, according to the Court, Chalimoniuk's absences on July 31, August 2 and August 3 were not for "treatment," and the Company could terminate his employment for absenteeism for those days without violating the FMLA.

The Court's decision illustrates that employers can win FMLA cases when they know the law, carefully review all medical documentation, and challenge discrepancies.

For more information about this decision or other employment law issues, contact educational services at (414)988-8400.