No FMLA Protection for Alcoholic Employee Who Had Not Entered Treatment Program
March 5, 2008
Erika Royal- Ft Lauderdale
The Family and Medical Leave Act (FMLA) entitles an eligible employee to up to 12 weeks of leave during any 12-month period if the employee has a “serious health condition” that makes the employee unable to perform the functions of his or her job. The FMLA defines a “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The FMLA does not specifically address whether substance abuse or alcoholism constitute a “serious health condition,” but the Department of Labor (DOL) regulations interpreting the FMLA provide that FMLA leave may be taken for treatment of substance abuse. In contrast, absence from work because of an employee’s use of a substance, rather than for treatment, is not protected by the FMLA. Recently, the Seventh Circuit Court of Appeals issued an opinion underscoring how important that distinction can be for an employer. Darst v. Interstate Brands Corp., Case No. 04-2460, – F.3d – (7th Cir. 2008).
The Facts
Krzysztof Chalimoniuk worked for Interstate Brands Corporation (IBC), a baked goods manufacturer, for 15 years before he was terminated for excessive absenteeism. Chalimoniuk, an alcoholic, requested FMLA leave for an absence from work from July 29 to August 14, 2000. It was undisputed that, from August 4-11, 2000, Chalimoniuk was hospitalized for treatment for alcohol dependence and acute withdrawal syndrome. Nevertheless, when Chalimoniuk returned to work on August 15, 2000, he was terminated.
IBC used a points-based system to track and discipline employees who were absent from work. An employee who was absent with an advance call to IBC earned three points for each day of absence, while an employee who was absent without calling in accrued four points for each day of absence. The accumulation of 12 points resulted in a written warning; 18 points warranted a written reprimand. Ordinarily, an employee who accumulated 24 or more points would be discharged. For Chalimoniuk, the points “cut-off” for discharge was 32 points. An employee on FMLA leave did not accumulate points under IBC’s system. Prior to July 29, 2000, Chalimoniuk had accumulated 23 points.
On the evening of Friday, July 28, 2000, Chalimoniuk purchased a large quantity of alcohol. By the following Sunday, Chalimoniuk had drank enough to lose his memory for two or three days. Between July 29 and August 2, Chalimoniuk and his wife made multiple attempts to obtain treatment for his alcoholism, including calling the Fairbanks Hospital and Chalimoniuk’s personal physician. Although Chalimoniuk was scheduled to work in the muffins department at IBC on July 31 and August 2 and 3, 2000, he did not report for work. On August 4, 2000, Chalimoniuk was admitted to Fairbanks Hospital for inpatient treatment. He completed his treatment program on August 10 or 11.
Chalimoniuk requested that the physician who treated him at Fairbanks Hospital, Dr. Stephen Pfeifer, complete an FMLA Certification of Health Care Provider, which he later submitted to IBC. Dr. Pfeifer indicated that Chalimoniuk’s “serious health condition” involved “absence plus treatment.” Dr. Pfeifer also indicated that Chalimoniuk suffered from “alcohol dependence and acute withdrawal syndrome” and that he had been hospitalized for withdrawal symptoms and treated successfully. Dr. Pfiefer wrote that the “approximate date the condition commenced and the probable duration of the condition” was July 29 through August 11, 2000.
On August 11, 2000, Chalimoniuk also submitted a health insurance form to IBC. Dr. Timothy Kelly, also from Fairbanks Hospital, filled out this form, indicating that Chalimoniuk had suffered from “alcoholism” and that the “dates of service” were July 29 through August 10, 2000. Because the dates on the certification and the health insurance form differed, IBC contacted Fairbanks Hospital directly, and was informed that Chalimoniuk had not been admitted to the hospital until August 4, 2000. Based on this information, and the FMLA regulations which provide that absences due to treatment for substance abuse are protected by the FMLA, but absences due to an employee’s use of a substance are not, IBC concluded that Chalimoniuk was not entitled to FMLA leave on July 29 and August 2-3.
When Chalimoniuk returned to work on August 15, 2000, he confirmed that he entered the hospital onAugust 4, 2000. IBC therefore terminated his employment. Chalimoniuk filed suit against IBC alleging that his termination constituted a wrongful denial of FMLA benefits. The district court found that Chalimoniuk was not being treated for alcoholism on July 29 and August 2-3 and thus granted summary judgment in favor of IBC. Chalimoniuk appealed.
Seventh Circuit Court of Appeals Affirms Summary Judgment for Employer
In affirming summary judgment for IBC, the Seventh Circuit first noted that, when an employee alleges a deprivation of the substantive guarantees of the FMLA, the employee must establish, by a preponderance of the evidence, an entitlement to such leave (because the case was resolved on summary judgment, Chalimoniuk needed only to raise a genuine issue of material fact regarding his entitlement to leave on the relevant dates). The Court stated that, while substance abuse may sometimes be a “serious health condition,” FMLA-protected leave may only be taken for treatment of substance abuse. Specifically, under the applicable regulations, absence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave. 29 C.F.R. § 825.114(d). The parties disputed whether Chalimoniuk was intoxicated on the days in question, but the Court ultimately found that, even if he was sober, Chalimoniuk had provided no explanation for his absences that would excuse them under IBC’s point system, except to say that he was being treated for alcoholism. Thus, the question was whether Chalimoniuk had provided sufficient evidence to create a genuine issue of fact as to whether he was in treatment for alcoholism on the days he missed work.
The Seventh Circuit rejected Chalimoniuk’s attempts to rely on the certification completed by Dr. Pfeifer, noting that the form was not specific enough to differentiate between the date when the condition commenced and the date when Chalimoniuk actually received treatment. The Court also rejected Chalimoniuk’s argument that he should prevail because IBC failed to obtain his consent before contacting Fairbanks Hospital. The FMLA regulations state that once an employee has provided a complete medical certification, the employer may not request additional information from the employee’s health care provider. 29 C.F.R. § 825.307. Instead, only a health care provider representing the employer may contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authentication of the information in the medical certification. Id. Nevertheless, the Seventh Circuit held that the FMLA provides no remedy unless an unauthorized contact interferes with, restrains or denies an employee’s exercise of his rights under the FMLA. There could be no such interference in this case because Chalimoniuk had no right to FMLA leave on the three days in question. For similar reasons, the Court rejected Chalimoniuk’s argument that IBC had failed to give him a reasonable opportunity to cure any deficiency in his certification, as permitted under the FMLA regulations. 29 C.F.R. § 825.305(d). Again, the Court noted that no harm was caused by IBC’s failure to allow Chalimoniuk to cure any deficiency because he was not actually entitled to FMLA leave.
In short, the Court held that because Chalimoniuk failed to produce any evidence that he received treatment on the three days in question, he was not entitled to FMLA leave for those days. He therefore had exceeded the number of points allowed under IBC’s attendance policy, and IBC was free to terminate his employment without running afoul of the FMLA.
The Lesson
Most employers know that the FMLA offers some protection to employees who have problems with substance abuse. This case sharply illustrates the scope of those protections. Otherwise eligible employees may be entitled to FMLA leave for absences attributable to treatment for substance abuse. But an employee’s absence because of his use (or abuse) of a substance is not afforded any protection under the FMLA.
For more information, email Erika Royal at erika.royal@hklaw.com or call toll free, 1.888.688.8500.