(a) Substance abuse may be a serious health condition if the
conditions of Sec. Sec. 825.113 through 825.115 are met. However, FMLA
leave may only be taken for treatment for substance abuse by a health
care provider or by a provider of health care services on referral by a
health care provider. On the other hand, absence because of the
employee's use of the substance, rather than for treatment, does not
qualify for FMLA leave.
(b) Treatment for substance abuse does not prevent an employer from
taking employment action against an employee. The employer may not take
action against the employee because the employee has exercised his or
her right to take FMLA leave for treatment. However, if the employer
has an established policy, applied in a non-discriminatory manner that
has been communicated to all employees, that provides under certain
circumstances an employee may be terminated for substance abuse,
pursuant to that policy the employee may be terminated whether or not
the employee 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.
[73 FR 68080, Nov. 17, 2008]
