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7th Circuit: Absence Attributable to Drinking Did Not Qualify for FMLA

By Maria Greco Danaher   5/16/2008
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The 7th U.S. Circuit Court of Appeals upheld the dismissal of an employee’s claim that he was improperly denied Family and Medical Leave Act (FMLA) leave for substance abuse treatment. The court based its decision on the fact that the employee was not entitled to leave for the specific dates in question, as he had not yet started his actual treatment on those dates.

Krzysztof Chalimoniuk’s former employer, Interstate Brands Corp. (IBC), has a points-based system for tracking absenteeism. Employees are disciplined for absences based on the number of points accumulated. Points are assigned to occurrences depending on various circumstances, including whether the employee called in advance of the absence, whether the absence was a partial day or full day, and whether it simply involved a tardy or a failure to complete a shift. Under IBC’s policy, no points are assigned for absences under the FMLA.

On July 29, 2000, Chalimoniuk had accumulated 23 points. An accumulation of points leads to progressive discipline, up to and including discharge. Chalimoniuk’s discharge trigger was 32 points.

On Friday, July 28, 2000, Chalimoniuk, who had been struggling with alcoholism for some time, drank a quantity of alcohol sufficient to lead him to lose his memory for two or three days.

On July 29, his wife called a local hospital to inquire about substance abuse treatment for her husband. During the following days, the hospital communicated with Chalimoniuk and his insurance company and finally admitted Chalimoniuk on Aug. 4. He remained there until Aug. 10, when he completed his treatment.

At some point, Chalimoniuk requested FMLA paperwork from IBC, and he returned the completed forms on Aug. 11. The hospital physician who treated Chalimoniuk indicated that the duration of the incapacity was from July 29 through Aug. 11. However, the insurance form submitted by Chalimoniuk indicated the disability dates as July 29 through Aug. 10.

Because of the discrepancy, IBC checked with the hospital to clarify the actual admission dates and found that Chalimoniuk had not been admitted until Aug. 4. Under U.S. Department of Labor regulations related to the FMLA, “leave may only be taken for treatment of substance abuse by a health care provider. ... [A]bsence because of the employee’s use of the substance, rather than for treatment, does not qualify for FMLA leave.”

Because Chalimoniuk had been assigned to work for three of the days between July 29 and Aug. 4 and because he was absent but not yet in treatment on those days, he accrued an additional 10 points under IBC’s system, which resulted in his discharge from employment.

Chalimoniuk sued IBC, claiming violation of the FMLA. The lower court dismissed the claim, finding that Chalimoniuk’s absences between July 29 and Aug. 4, combined with his prior absences, put him over the point limit under IBC’s policy.

The 7th Circuit affirmed and agreed that under the regulations, Chalimoniuk lacked evidence that established his entitlement to FMLA leave.

This case turned on the question of whether Chalimoniuk was being “treated” during the period prior to his hospitalization. While the hospital physician submitted an affidavit stating that treatment for alcoholism begins when the first step toward assistance is taken, the federal appeals court found that the calls made by Chalimoniuk and his wife to the hospital and the insurance company were insufficient to fall within the FMLA’s definition of “treatment.” Therefore, Chalimoniuk’s absences were unexcused.

Darst v. Interstate Brands Corp . , 7th Cir., No. 04-2460 (Jan. 11, 2008).

Professional Pointer: Employers should carefully review requests for FMLA leave made for substance abuse treatment to determine whether the individual met with a health care provider or received any other actual medical treatment prior to formally entering a recovery program. If such “treatment” occurred, that period may be included as FMLA leave.

Maria Greco Danaher is an attorney with the firm of Ogletree Deakins in Pittsburgh.

Related Resources:

Accommodating the Alcoholic Executive , SHRM Legal Report, January 2008

FMLA/Leave Toolkit

Editor’s Note: This article should not be construed as legal advice.

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SHRM Online Workplace Law Focus Area

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