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Thread: Employee Went to Rehab-Can We Terminate? Pennsylvania

  1. #1
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    Default Employee Went to Rehab-Can We Terminate? Pennsylvania

    Hello,

    An employee of ours went missing for two days straight and we eventually found out he checked into rehab. He never let us know beforehand that he would be going and we had no clue of his addiction. Can we terminate this employee while he is away in rehab for 30 days?

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    Do you have a written policy that spells out that employees will be termed for a two-day no-show, and if you do have you consistently enforced that?

    Does FMLA apply?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Also, how did you come to find out where he is and how long he will be off work? What would you do if this was an emergency surgery or serious illness instead of rehab?
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    rehab/drug abuse is covered under ADA and often a short leave of absence can be a reasonable accommodation. Also it could be covered under FMLA if the employer knows about it. I would suggest sending a certified letter to the last known address advising the employee of their rights under FMLA if the employer and employee fall under its eligibility. Also check for any state laws. Pennsylvania is not my state.

    "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. "
    http://webapps.dol.gov/elaws/whd/fmla/10c9.aspx

    I also suggest reading through this DOL Opinion Letter: http://www.dol.gov/whd/opinion/FMLA/...02/FMLA-69.htm...

    Do you have a drug use/abuse policy? "...Treatment for substance abuse, however, does not necessarily prevent an employer from taking employment action against an employee. The employer may not take action against the employee because the employee has exercised the right to take FMLA leave for treatment. If, however, the employer has an established policy, applied in a nondiscriminatory manner that has been communicated to all employees, that provides that under certain circumstances, including enrolling in a substance abuse program, an employee may be terminated for substance abuse, pursuant to that policy an employee may be terminated whether or not the employee is presently taking FMLA leave. (See section 825.112(g).) ...

    and "...When employees are absent without advance notice for rehabilitation treatment for substance abuse and the conditions of the FMLA regulations are met as noted above, such absences may be counted against an employee's FMLA leave entitlement as provided in section 825.208. Such an absence may be counted as FMLA leave from the first date of the absence if the employer promptly within two business days of learning of the reason for the absence notifies the employee that the absence is designated and will be counted as FMLA leave. See section 825.208(b)(1). "

    I would not terminate if you fall under either law without speaking with an employment attorney.
    Last edited by hr for me; 04-08-2014 at 01:20 PM.

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    And here is some information on "unforeseeable needs": http://www.dol.gov/whd/regs/compliance/whdfs28e.pdf
    Leave that is Unforeseeable
    When the need for leave is unexpected, the employee must provide notice to the employer as soon as possible and practical. It should generally be practicable for the employee to provide notice of leave that is unforeseeable within the time required by the employer’s usual and customary notice requirements. For example, if the employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee is not required to leave the child to report the absence while the child is receiving emergency treatment.
    When the employee does not give timely notice of unforeseeable leave and does not have a reasonable excuse, the employer may delay or deny the FMLA leave. The extent of an employer’s ability to delay FMLA coverage for leave depends on the facts of the particular case. For example, if it was possible for the employee to give notice of the need for leave the same day it was needed, but instead gave notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.


    Now it is possible that this was foreseeable, but if he is receiving "emergency treatment" it is possible that he would have more than 2 days to provide notice under the "possible and practical".

    I've just seen a lot of cases go the employee's way....so I would be extra careful.

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    When my then-employer had a similar (not identical, but similar) situation come up about fifteen years ago, we had not one, not two, but three different attorneys warn us against termination until, at the very least, we saw whether he returned from rehab on a timely basis. FMLA did not apply in our case but the ADA did, and rehab can be covered.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    Thank you all for your responses. We do not have any written policies in regards to this situation, so it looks like we will be hiring him back. To be honest, I hope he gets clean but I have my my suspicions due to his past behavior. Again, thanks for the help.

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    Your statement concerns me....If he was covered under benefits, you need to continue those while he is out on leave. You can't just terminate and "hire him back" when he gets out. FMLA means he keeps his job while he is out and any benefits that he had in that job.

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    It sounds like you already terminated. Did FMLA apply? (How long had he been there, how many employees within 75 miles and how many hours did he work in the past year)? Why exactly did you terminate?
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Sorry, I worded that incorrectly. We did not terminate him.

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    Maybe you can discuss company policy with that person, afterward.
    Disclaimer: I am not a lawyer or qualified to practice law in any state. I only argue legal theory and politics, from an economics perspective.

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    Daniel this post is from more than a year ago. Please do not post on old threads.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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    Will close old thread since over a year old.
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