Serious Health Condition - Leave for Treatment of Substance Abuse

Treatment for substance abuse may be a serious health condition if the conditions for inpatient care and/or continuing treatment are met.

FMLA leave may only be taken for substance abuse treatment provided by a health care provider or by a provider of health care services on referral by a health care provider. Absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.

The employer may not take action against the employee because the employee has exercised his or her right to take FMLA leave for substance abuse treatment. However, if the employer has an established policy, applied in a non-discriminatory manner, that has been communicated to all employees, and that provides under certain circumstances an employee may be terminated for substance abuse, then pursuant to that policy the employee may be terminated regardless of whether he or she is presently taking FMLA leave.

An employee may also take FMLA leave to care for a covered family member who is receiving treatment for substance abuse. The employer may not take action against an employee who is providing care for a covered family member receiving treatment for substance abuse.

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For more information on this aspect of the FMLA, see the FMLA regulations: § 825.119