In yesterday’s Advisor, we covered the first two legs of FMLA eligibility. Today we address the third leg, FMLA and substance abuse, and provide notice of a unique FMLA Boot Camp webinar.
Once employees have meet the 12 months and 1,250 hours requirements [go here for that discussion], FMLA also requires that they work at a worksite where 50 or more employees are on-site or within a 75-mile radius of the worksite.
The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways, and waterways, by the shortest route from the facility where the employee requesting leave is employed.
For employees with no fixed worksite, the "worksite" is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.
The determination of whether 50 employees are employed within 75 miles is made when the employee gives notice of the need for leave. The employee’s eligibility continues even if the number of employees subsequently drops below 50.
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For example, if an employer employs 60 employees in August, but expects that the number of employees will drop to 40 in December, the employer must grant FMLA benefits to an otherwise eligible employee who gives notice of the need for leave in August for a period of leave to begin in December.
What If the Employee Meets Requirements After Leave Begins?
If an employee requests leave before the eligibility criteria have been met, the employer may have to project when the date of eligibility begins. If the employee is on non-FMLA leave at the time he or she meets the eligibility requirements, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be FMLA-qualifying leave.
Leave for Treatment of Substance Abuse
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 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.
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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 leave for treatment.
Finally, an employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. Note that the Americans with Disabilities Act (ADA) may play into this. An individual who is currently using drugs illegally is not protected by the ADA and may be denied employment or be fired on the basis of such use. However, an individual who has had a drug problem but is no longer using drugs illegally is protected, provided he or she has completed or is participating in a supervised rehabilitation program.
Regardless of how long you’ve been in HR, employee leaves are inherently confusing. The laws are nitpicky and tricky to implement, and they interact with each other in complicated ways. If you don’t get it right, despite your best efforts, you could be setting your organization up for a costly (and embarrassing) lawsuit.
Don’t let this happen to you. Plan to attend Boot Camp—BLR’s new, day-long webinar that will delve to the real nitty-gritty of leave management.
The date is April 27, 2010, from 11:00 a.m. to 4:45 p.m. (Eastern Time—adjust for your time zone). As with all BLR webinars, one fee trains all the staff you can fit around a conference phone. You can get your (and their) specific phoned-in or e-mailed questions answered in an extensive Q&A session that follows the presentation, and your satisfaction is assured, or you get a full refund.
What if you can’t attend on that date? Preorder the conference CD. For more information on the conference and the experts presenting it, to register, or to preorder the CD, click here. We’ll be happy to make the arrangements.
Please join us April 27. Get more information.
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