One of our employees informed us that he is planning to enter a six-week alcohol or drug rehabilitation program. Are we required to provide him leave time?
An employee who seeks time off to enter an alcohol or drug rehabilitation program may be eligible for leave protections under several state and federal laws.
California Labor Code
Under Labor Code Section 1025, California employers who regularly employ 25 or more employees are required to reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that the accommodation does not impose an undue hardship on the employer.
Leave under the Labor Code applies to all employees, even new hires, and does not require that an employee satisfy any work eligibility requirements.
In this situation, a covered employer can deny the employee’s request for leave to participate in a six-week rehabilitation program only if it can show that the accommodation would impose an undue hardship on its business.
Undue hardship is a highly litigated subject and can be difficult for employers to prove. Therefore, employers should consult with legal counsel prior to making an undue hardship determination.
An employee can file a complaint with the state Labor Commissioner if he/she believes they have been denied reasonable accommodation. (Labor Code Section 1028)
An employer does not have to provide paid time off to an employee taking rehabilitation leave, but the Labor Code provides that an employee may use sick leave pay for the purpose of entering and participating in an alcohol or drug rehabilitation program. (Labor Code Section 1027)
In addition, employees seeking treatment may be eligible for State Disability Insurance benefits.
An employer must make reasonable efforts to safeguard the privacy of the employee and must not disclose that he/she has enrolled in an alcohol or drug rehabilitation program. (Labor Code Section 1026)
Importantly, this provision of the Labor Code does not prohibit an employer from refusing to hire, or discharging an employee who, because of current alcohol or drug use, is unable to perform their duties or cannot perform the duties in a manner that does not endanger their own health or safety or the health or safety of others. (Labor Code Section 1025)
Other Protected Leaves
In addition to the Labor Code, alcohol or drug rehabilitation leave also may be covered by the federal Family and Medical Leave Act (FMLA) for businesses with 50 or more employees or the California Family Rights Act (CFRA) for businesses with five or more employees. These laws provide up to 12 weeks of unpaid leave in a 12-month period.
The FMLA/CFRA will apply if the employee meets the work eligibility rules and provides medical certification indicating that the employee has a serious health condition.
Absent undue hardship, an employer also may have to consider granting time off for alcohol or drug rehabilitation as a reasonable accommodation under the Americans with Disabilities Act (businesses with 15 or more employees) and/or the California Fair Employment and Housing Act (businesses with five or more employees).
As there may be several laws that apply, an employer should consult with legal counsel before denying an employee’s request for time off to participate in an alcohol or drug rehabilitation program.
Even if an employer is not required to provide rehabilitation leave under state or federal law, it is good employer policy to encourage employees who suffer from substance abuse to seek treatment under an Employee Assistance Program and/or rehabilitation program.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.