ADA, FMLA and Current Alcohol Rehab

HR in CA

[font size="1" color="#FF0000"]LAST EDITED ON 09-20-05 AT 01:39PM (CST)[/font][br][br]I currently have an employee scheduled to work a 4 hour day rather than 8 in order to attend intensive out patient therapy for alcohol. Originally it was to be 6 weeks, now its 8 weeks. Now the employee is missing a couple of full days per week, claiming to be sick. Our policy states a doctor's note must accompany an employee who is out more than 3 consecutive days, which she never is. She had already taken about 1/2 of the 480 hours of FMLA for related issues late spring. Now because she continues to take days off, she no longer has enough FMLA leave available to complete the therapy. We did approve the six weeks of 1/2 days in the hopes things would improve for the employee. That does not seem to be happening.

Questions:

In the opinion of the forum, can the days that she calls in sick, be counted as part of FMLA?

Since she is actively in treatment the consensus is she has protection under ADA, do you agree? If so, what type of reasonable accommodation has to be made for the employee who can't get themselves to work because they are depressed about their drinking ruining their life.

How do we regain control on this situation?

LivindonSouth

Don't know how CA law will interface with my suggestion; but, in a similar situation the employee was told that in order to remain employed he was required to permit the counselor to speak with the HR Manager about lack of progress. That finally got done and the matter was resolved through a frank discussion with the counselor. Everybody's goal is the same here. It's a matter of negotiating the red-tape.

If she straightens up fine. If not, she may be terminated. Unless California law does, Federal FMLA does not require that you esceed the entitlement, nor does ADA. Reasonable accommodation does not include missing several sick days a week outside the scope of the approved program.

I do think a phone call to the counselor, with the employees approval, will get this settled.

Gillian3

My opinion isn't too different from the first post, but the ADA is not an issue for us in Ca. - in fact, it is almost irrelevant. The disability law for us is the Fair Employment and Housing Act which is stricter than the ADA when it comes to evaluating disabilities. FEHC defines a disability as one which "limits" a major life activity, not "substantially limits" as does the ADA. That makes a world of difference, but in your case you may just be dealing with an absenteeism issue, which is not protected. Determining which is the case means that you will have to communicate with the employee and the doctor. You may also be incorrectly assuming that this is a covered disability - both the ADA and FEHA assume this would be a covered disability after successful completion of rehabilition. You might want to run this one by an attorney.

TN HR

I'll preface my post by offering my opinion simply as that of a recovering alcoholic, and one who is heavily involved in sponsoring other recovering (or those trying to recover in some cases) as well as actively assisting a very prominent treatment center somewhere in TN by facilitating 12-step meetings and working with addicts and alcoholics who are patients.

She's full of crap. She's missing a couple days a week because she's drinking. Give me a break! I have never known those in recovery, even early recovery, to be so depressed about their drinking that they need to miss work. If anything, they're usually overly enthusiastic and pumped (what we refer to as riding the pink cloud) which in and of itself is dangerous in early recovery because of the perception that one is "cured" and can go back to drinking "like normal people".

You need to get involved with the program she is in. Employers are a vital part of the treatment team (as are family members, etc). She could be bamboozling the outpatient center (which, IMHO, is not a good alternative for chronic alcoholics as first course of treatment anyway).

If she refuses to cooperate with you in terms of allowing your involvement then refuse any accomodation in terms of missing whole days as unreasonable and when she calls out can her. The best thing you might do for her is help her hit rock bottom. Don't enable the situation.

Gene

LindaS

Based on your post I'm assuming that the FMLA paperwork relating to her treatment outlines the dates/times of the treatment and if so, I would not count those additional days as FMLA UNLESS her counselor can verify that these additional days are due to her treatment and/or that these days are legitimate due to her depression. If you cannot get this verification I would count those days against your attendance policy and follow the discipline accordingly.

While I will not assume that those additional days off are due to her drinking I will say that having approved FMLA leave does NOT grant an EE carte blanche to come and go as they please.

I would contact the counselor and, while they may not talk to you about specifics, I would inform this person of the situation and ask that they either get an authorization from the EE that DOES allow them to keep you up to date of the situation and if the EE refuses, that their additional absences will count against them.

Good luck.