Verify Rehab Treatment for an Employee

The Family and Medical Leave Act (FMLA) allows U.S. employees to take time off work for treatment of a serious health condition. If you are covered under the FMLA as an employer, you must provide an employee time off to undergo substance abuse treatment. When the employee returns, they are entitled by federal law to return to their job or one substantially similar. They also may be entitled to reasonable accommodations under the Americans with Disabilities Act (ADA). However, you still reserve the right to discipline or terminate any employee for current substance abuse, provided you have a written policy in place that prohibits substance abuse. That policy must be applied non-discriminately.

Steps

Requesting Medical Certification

1. Receive an FMLA request. If an employee requests time off to take place in a substance abuse treatment program, you must assess whether they are eligible for FMLA time. Generally, the employee must have worked for you for at least a year.
   • The employee can request time off either orally or in writing. For example, the employee may call in and request time off, or may stop you in a hallway to ask you about it.
   • Generally, an employee would need to give you 30 days notice to take time off under FMLA. However, there is an exception for unforeseen circumstances that necessitate taking immediate leave.
   • While employees typically would have difficulty arguing that entering rehab was "unforeseen," treat these situations with some sympathy.
   • Keep in mind that often once an addict makes the decision to seek treatment, it's important to get them into that program as soon as possible.
   • Also many treatment programs, particularly inpatient programs, have extended wait-lists that make it difficult for an employee to predict exactly when they'll need time off to take an available spot.
2. Give the required notice to the employee. Within five days of the date the employee requests time off, you must give them a notice that specifies their eligibility for FMLA and whether they must take any accrued sick leave first.
   • You can download an employer's guide to the FMLA from the website for the U.S. Department of Labor (DOL). It provides clear information on how to evaluate employee eligibility for leave under the FMLA.
   • The eligibility notice lets the employee know if they are eligible for FMLA leave. If you've determined they're not eligible, you must provide at least one reason why.
3. Download the FMLA certification form. The DOL provides a certification form that includes space for all of the information you are entitled to receive about an employee's reason for requesting time off under FMLA.
   • You can easily download the form from the DOL's website. You may want to print several copies, or save the PDF on a human resources or management computer. That way you'll always have one handy if you need it.
   • Federal privacy laws limit the amount and types of information you can get from an employee's doctor. The form ensures you get all the information to which you are entitled without inadvertently asking for too much.
4. Send the form to the employee's healthcare provider. You have the option of either giving the form to the employee and having them return it to you, or sending it directly to the employee's healthcare provider.
   • The easiest way to do this is to give it to the employee and have them take it to their healthcare provider. This eliminates the need to get a signed authorization form from the employee.
   • However, it also could open the door to questions as to whether the employee has falsified or forged the form – particularly if you consider this employee untrustworthy.
   • The remedy for that is to send the form directly to the healthcare provider the employee names, along with a signed authorization form from the employee that allows the doctor to release the information to you.
5. Verify the certification form. If the employee was in charge of getting the form filled out and returned, you may want to contact the office of the healthcare provider to make sure the information on the form is accurate and was not fabricated.
   • Keep in mind that health privacy laws prohibit you from speaking directly to the employee's doctor. You'll have to speak to someone at the doctor's office who works in benefits or human resources.
   • You can contact the doctor to confirm that the doctor did indeed sign the form. You also can clarify information contained on the form.
   • Generally you'll have to read the form as you understand it, and then the doctor's office will confirm whether that information is accurate as provided by the doctor.

Maintaining Confidentiality

1. Get written authorization. Under federal law, doctors cannot tell you anything about an employee's medical treatment without the employee's permission. This means if you either must have the employee take the certification form to their doctor, or have them complete and sign an authorization form.
   • The doctor may have a legally-approved authorization form that you can use, or you may be able to download one online.
   • To find an approved form, search online for a HIPAA authorization form. "HIPAA" is the name of the federal medical privacy law that controls confidentiality and access to confidential health information.
2. Keep medical records separate. To maintain the confidentiality of an employee's medical information, you generally should keep any medical documents or records you receive separate from the employee's regular personnel file.
   • These records include any medical certification forms you get in conjunction with an employee's FMLA request.
   • Not only should they be kept in a separate file, but you should keep them in a completely separate cabinet or drawer that is lockable. This makes it easy to ensure they can't be accessed by the wrong people.
3. Limit access to employees' medical information. While many managerial employees may have access to general personnel files, you want to restrict access to confidential medical information. It generally should be available only on a "need to know" basis.
   • For example, the person who does your payroll may need to access the length of time the employee is on leave, but he or she has no reason to know the reason why that leave was taken.
   • In most businesses, there will be very few people who will have any need to have access to this information.
   • Not even the employee's immediate supervisor needs to have access. They may need to know the employee is taking leave so they can adjust accordingly, but they do not need to know why.
4. Discourage discussion about employees' medical conditions. Gossip can be difficult to control in any workplace. However, attempting to eliminate rumors about why someone has taken leave prevents violating that employee's privacy.
   • Instruct anyone who knows the reason the employee took leave that they should not reveal this confidential information to anyone.
   • If the employee reveals this information to co-workers, that's their business – but you should do everything you can to avoid this information becoming gossip in the employee's absence.
   • Keep in mind the sensitive nature of rehab. There may be very few people who know that the employee has a problem with drugs or alcohol, and the employee may want to keep it that way.
   • Keeping the reason for the employee's absence secret also helps prevent discrimination against the employee when he or she returns.

Providing Reasonable Accommodations

1. Meet with the employee. When an employee comes back to work after substance abuse treatment, it's a good idea to meet with them before they get started and find out what, if any, accommodations they need to ensure a smooth transition back to work.
   • This can be especially important if the employee is returning from an extensive stay in an inpatient rehabilitation facility.
   • They may require some time to readjust to the demands of work and daily life.
   • Additionally, they may have ongoing appointments that require an adjustment to the hours they work.
   • Keep in mind that while abusing alcohol or drugs is not considered a disability, the Americans with Disabilities Act (ADA) does offer limited treatment for recovered or recovering addicts.
2. Implement written substance abuse policies. if you don't already have one, a written substance abuse policy can ultimately save your business significant money and resources. If your policy is implemented and enforced consistently, you will have a healthier and more productive workforce.
   • It's okay if the occasion of an employee going to rehab spurs you on to finally create a substance abuse policy. However, keep in mind you can't use this policy as a hammer to punish the employee who requested leave.
   • The policy must have the goal of encouraging a healthy and productive workforce, and must be applied consistently and indiscriminately.
   • This means you can't, for example, only require drug tests from employees who have been to rehab or gotten into trouble with drugs.
   • Your policy should be in writing, and should be made available to all employees.
3. Consider requiring periodic drug tests. As part of a non-discriminatory workplace substance abuse policy, you can require mandatory random or routine drug tests of your employees, including employees who have recently completed a substance abuse treatment program.
   • Keep in mind that you can't terminate or discipline an employee because the drug test reveals the presence of a lawfully used medication.
   • For example, suppose you have an employee who gets inpatient substance abuse treatment for heroin addiction.
   • If that employee continues on methadone treatment, you cannot terminate or discipline that employee if their drug test reveals the presence of methadone.
4. Educate employees on the dangers of substance abuse. Employee education is a big part of keeping your workplace safe and drug-free. You can use your program to point out specific dangers of substance abuse for your particular industry.
   • As part of your educational program, encourage your employees to seek treatment if they believe they are getting into trouble with alcohol or drug use.
   • You want to encourage confidentiality and sensitivity as well. For example, employees shouldn't attack or make fun of someone who's just returned to work after completing a substance abuse treatment program.
   • This type of behavior can be considered discrimination under state and federal laws that prohibit discrimination against people with disabilities. Recovered or recovering substance abusers are considered people with disabilities for the purposes of these laws.
   • Check with drug abuse or treatment organizations in your area to see if they offer seminars or lectures for workplaces.
   • Many of these programs have the power to educate as well as inspire your staff.

References

See also

• Sue the Government for Discrimination
• Claim Age Discrimination for Apprenticeship Programs
• Help Avoid Employee Lawsuits
• Handle Disciplinary Actions
• Claim Weight Discrimination
• Know if You Should Sign a Covenant Not to Sue
• Defend Yourself in a Wrongful Termination Lawsuit
• File Charges With EEOC
• Defend Yourself in an Asbestos Exposure Lawsuit
• Take Legal Action if Fired for Having PTSD

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