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Leave for Alcoholism Treatment Does Not Begin at First Telephone Contact with Physician

By Harvey Randall, Esq.

Leave for Alcoholism Treatment Does Not Begin at First Telephone Contact with Physician
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/ Copyright © 2008. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

The issue in Darst v. Interstate Brands Corp., No. 04-2460, 2008 U.S. App. LEXIS 489 (7th Cir. Jan. 11, 2008) was whether a three-day period cited in support of the employee's termination should have been protected by the FMLA. The employee suffered from alcoholism and went on a three-day bender when he was not scheduled to work. After the bender, the employee called his physician and a local hospital seeking alcoholism treatment. Four days later the employee was admitted into the local hospital for treatment. In the interim, he missed three days of work.

The employee requested FMLA leave for the period beginning when he first called his physician seeking treatment through his admission into a treatment program up to his release to return to work. The employee supported his request with a medical certification from his physician.

Interstate subsequently learned that the employee was not admitted to the hospital for the entire period of time he wanted FMLA leave. After consulting with the Department of Labor, Interstate denied FMLA leave for three days the employee was scheduled to work prior to his hospital admission. The three uncovered absences put the employee over the limit of Interstates attendance policy, resulting in his termination. The employee sued alleging interference with his FMLA rights.

To establish that he received treatment on the three days at issue prior to his hospital admission the employee's physician testified that: [T]reatment for alcoholism begins when the patient takes the first step towards seeking professional help. Accord to Dr. Pfeifer, this includes the first phone call to the health care provider seeking evaluation, treatment or referral. Based on his training and experience as a medical doctor, Dr. Pfeifer averred that Chalimoniuk's treatment therefore began on July 29, when he first contact4ed his physician's office."

The Seventh Circuit disagreed. The court opined that "treatment under the FMLA" is a defined term that does not include actions such as calling to make an appointment. Under the FMLA, "treatment" includes examinations to determine if a serious health condition exists and evaluation of the condition. It does not include "any activities that can be initiated without a visit to a health care provider."

Comment: To be covered by the FMLA medical treatment must satisfy the FMLA's definition of "treatment." The fact that the medical profession may have a broader definition of what constitutes "treatment" is not controlling.

In a footnote, the decision makes a helpful suggestion that the DOL update its FMLA medical certification form to make it clear to health care providers that substance abuse is limited to the period of treatment, which may be different than the period of incapacity.

Carl C. Bosland

Full post as published by New York Public Personnel Law on January 21, 2008 (boomark / email).