General Rules. At the time this article is published there are 2 laws in Vermont that protect the rights of eligible employees to reinstatement after a period of leave for the serious health condition of the employee: the federal Family and Medical Leave Law and the Vermont Parental and Family Leave Law. There are important differences between the two laws, but in general both statutes provide 12 weeks of leave to an employee who has a “serious illness” or “serious health condition” that incapacitates the employee from working.  If the employee has accrued sick or other leave, he or she may take up to 6 weeks of accrued leave at the employee’s option and take the remaining period of leave without pay. Employees have the right to continue their employer provided health insurance benefits on the same terms and conditions as other employees provided the employee co-pay is satisfied.  Employees are also entitled to reinstatement to their former position or an equivalent position upon return from leave.

Reinstatement Rights Generally Apply to an Employee Who Returns Before Exhausting the 12 Week Leave Entitlement. Generally, a covered employer is required to provide an eligible employee with up to 12 workweeks of leave under the federal Family and Medical Leave Act (“FMLA”).  Once the 12-workweek FMLA allowance has been exhausted, FMLA benefits and protections cease.  That same employee may be entitled to additional unpaid leave under the Americans with Disabilities Act or the “ADA,” and under a similar Vermont law. This could be required as a “reasonable accommodation.” Thus, an employer could discharge an employee who is unable to perform the essential functions of her job 15 weeks after she began leave under FMLA when there appears to be no end date to her incapacity.  If she is able to perform her job after 13 weeks of leave, the combination of FMLA plus the reasonable accommodation requirements of the ADA may require the employer to reinstate the employee.

Tip: Make sure you followed FMLA’s notice and posting requirements carefully before refusing to reinstate an individual who has exhausted his or her 12 week FMLA entitlement.  Include a FMLA policy in your employee handbook, post the U.S. Department of Labor FMLA poster on your employee bulletin board and notify the employee in writing within five business days of learning of the employee’s possible eligibility for FMLA leave or an employee’s request for FMLA leave (no need for employee to say “FMLA” or “Family and Medical Leave Act”) that the absence is designated as FMLA qualifying or preliminarily subject to FMLA leave pending receipt of the necessary medical certification forms from the employee’s health care provider available on www.dol.com.

Addiction is as much of a Serious Health Condition as Heart Disease or Cancer under FMLA Regulations. In general, an employee who is entitled to FMLA rights must have a “serious health condition” resulting in his or her incapacity to work in order to be eligible for FMLA leave. Often times, employers favor one serious health condition over another which is a particularly dangerous practice.  For example, employers tend to favor those with cancer, heart conditions and difficult pregnancies over those employees who are recovering addicts who can be stigmatized because of a past addiction. Substance abuse is a protected serious health condition if the appropriate conditions are met.  However, FMLA leave may only be taken for substance-abuse treatment when given 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. In other words, you can lawfully fire an employee who shows up to work drunk or stoned. It does not matter if the employee is permitted to smoke marijuana under Vermont’s medical marijuana law.  That law still requires employees to refrain from using medical marijuana or being under its influence while at work if the employer so requires.

Employees who are active alcoholics or recovered illegal drug addicts are also protected from discharge or discipline under federal and state civil rights law. However, current illegal drug users or active alcoholics who show up to work ill-equipped to do their jobs may be disciplined or discharged.

An employee is entitled to periodic intermittent leave for absences while enrolled in inpatient or out-patient rehabilitation programs at local hospitals or a detox facility.  Where an employee is terminated based on his absence due to substance abuse and prior to his entry into a substance-abuse program, the employer would not be required to reinstate him and provide FMLA leave.  When employees are absent without advance notice for rehabilitation treatment for substance abuse and the conditions of the FMLA regulations are met, such absences may be counted against an employee’s FMLA leave entitlement from the first date of the absence in most situations. It is important to recognize that under the federal Confidentiality Law applicable to drug and alcohol treatment facilities, an employee may refuse to disclose where he or she may be in detox. He or she must disclose that he or she is in detox in accordance with the employer’s call-in protocols, if feasible.  For example, if an employee is fired for absenteeism while he or she is in the emergency room getting treatment for an overdose, this will probably be a violation of FMLA if the employer does not designate the absence as FMLA leave upon receiving notice of the incapacity at the employee’s earliest possible opportunity or through an employee’s spouse or family member.

Caution. Vermont employers must adopt a drug testing policy that complies with Vermont’s drug testing statute before testing anyone for drug or alcohol use and, in the case of current employees, may only do so with an approved policy and testing only for cause. Ordinarily, however, an employee enrolled in an approved drug and alcohol treatment facility will be subject to drug and alcohol testing as a condition of the facility’s treatment program.

An employee may be discharged immediately under an employer policy if he has never requested FMLA leave for substance-abuse treatment and tests positive for illegal narcotics during a random or “for cause” drug test, or if he voluntarily admits to the employer that he is addicted to drugs.  An employee who tests positive and is granted FMLA leave under terms and conditions of reinstatement that include a weekly testing requirement, and who tests positive a second time, may be terminated under an employer policy that so provides whether or not the employee has used all of his or her allotted FMLA leave.

Employers may require that employees who disclose their personal substance-abuse conditions and obtain rehabilitation treatment to submit to substance abuse testing beyond that required of the general workforce.  Here again, a Vermont employer may not subject its applicants or employees to drug testing without first adopting a policy compliant with Vermont’s drug testing law.

Tip: Adopt and enforce a substance abuse policy requiring the immediate termination of any employee who possesses, sells or uses narcotics in the workplace or who reports for duty under the influence of narcotics or alcohol. This policy is lawful even if the employer does not have a drug testing policy and should be based on a reasonable suspicion standard.

It is important that employers consult with their employment counsel before terminating anyone on FMLA leave.  The interaction between FMLA and the ADA can create complex legal issues that require the advice of counsel to be handled lawfully.