The Family and Medical Leave Act and Addiction Treatment
August 28, 2017 Kristance Harlow
The United States does not have a great health care system to help people with substance use disorders (SUD). At every socioeconomic level, treatment is not easy to access. Stereotypes about addicts are outdated and inaccurate. Addiction and alcoholism are usually treated like moral failings or personal choice. The trope of the homeless alcoholic wandering the streets in rags is the story for some people, but it isn’t accurate for most individuals with an SUD.
Federal statutes set forth limited legal protections for people who are suffering from SUD by way of the Americans with Disabilities Act (ADA). People cannot be discriminated against by an employer if they have a history of SUD but are no longer using or if they are currently in a treatment program. If the employee is currently using drugs illegally, they are not protected. Alcoholism is a protected disability but an employer can still hold alcoholics to the same standards as other employees and, as noted by a court ruling, “a termination based on misconduct stemming from a disability, rather than the disability itself, is valid.” The crucial piece of these protections is that employers must give reasonable accommodation for treatment; whether that is seeing the doctor or attending 12 step meetings.
If the law is so limited for protecting employees and if stigma runs so rampant, how does one obtain professional treatment without being fired? The answer might be the Family and Medical Leave Act (FMLA).
About half of all Americans over the age of 18 with an SUD hold down full-time jobs. Nine percent of full-time workers have an SUD. Excessive drinking is a leading cause of workplace injuries and lost productivity and dependency is correlated with high job turnover. Addiction rates for the unemployed are upwards of 17 percent, and when unemployment rises there is an increase in substance use disorders.
The 2014 National Survey on Drug Use and Health found that among the many reasons people don’t seek professional help, 39 percent had no health insurance or didn’t have the funds and 17 percent were afraid they would lose their jobs. Tied up in this is one of the biggest barriers, stigma. Seventy-eight percent of people say they wouldn’t want to work closely with someone with a substance use issue. It is no wonder only 1 out of 10 people who need treatment seek it. These statistics illustrate how important non-discrimination and treatment access are for a healthy workforce.
This is where FMLA comes in (for some people). The FMLA was designed so people don’t lose their jobs for taking a leave of absence to care for a family member’s serious health condition or for obtaining treatment for their own medical needs. Upon return to work, employers must reinstate you in your original job or one that is basically identical to the job you had. It’s unpaid leave of up to 12 weeks. This is additional leave on top of any other leave your employer might give you, like vacation or sick days. When it comes to treatment for a substance use disorder, it would be categorized as a serious health condition.
The FMLA is applicable nationwide for certain kinds of workers. First, you must work somewhere that has 50 or more people employed within a 75-mile radius. All government agencies are required to provide FMLA regardless of how many people work there. Second, you must have been with your employer for at least 12 months—these do not have to be consecutive, unless there is a break of seven years from when you first worked for the employer to when you worked again for them. Third, you must have racked up a minimum of 1,250 hours in the previous 12 months. Flight crew workers have different requirements due to their work schedules. Many states have their own programs that expand upon the FMLA and provide more comprehensive employee protections to more people. In addition to following the suggestions here, search your state for other programs you might be eligible for.
If you qualify and want to utilize the FMLA, there are a few things you need to do to notify your employer and to protect yourself from bias. Inform your employer as soon as possible. They need to tell you whether or not your leave is officially FMLA and they have to give you an answer within five business days of your request. You have to provide the minimum amount of information so you both are on the same page as far as your work schedule is concerned.
Your employer may ask for medical certification; it isn’t required for the federal law but it is something employers can implement. If your employer requests this, you need to give it to them within 15 days. It must be detailed and include things like when the issue started, medical information about the condition, and contact information for your doctor. In other words, you have to get a very comprehensive doctor’s note. There is a possibility that your employer will ask for a second or even third opinion. If they do, they have to pay for all the expenses and they can’t send you to a health care provider that works for—or frequently with—your employer. Your direct supervisor cannot be the one who is seeking clarification and second opinions. This might seem like a lot of information to provide, and it is, but after the certification is approved you do not have to give any further information until it comes time for recertifying (usually after 6 months). They also cannot ask anyone but you about your situation. Medical certification is not the same as medical records; you do not have to provide medical records to your boss.
It’s not perfect: there are loopholes that allow “certain” employers to deny “certain” classes of workers from “certain” protections. But when it works as intended, the FMLA can help people keep their jobs and their sobriety.
Originally published on The Fix
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