By Weisberg Cummings, P.C. on July 16th, 2019
Maybe you’ve thought about rehab for some time now. You know your substance abuse has become a problem, that it interferes with your work and your relationships. Is it alcohol addiction? Heroin? Prescription drugs?
You know that you need help. A rehabilitation program could help you turn your life around.
Seeking treatment for substance abuse is a stressful decision, though. People worry about the stigma of receiving treatment, of the way their family members, friends and coworkers might react if they find out. They worry about the potential costs or if the treatment will work.
And people really worry about keeping their jobs.
If you’re considering substance abuse treatment and worry you might lose your employment, please know you’re not alone. According to the Substance Abuse and Mental Health Services Administration (SAMHSA), 76% of Americans who struggle with substance abuse are employed. Many experienced individuals can help you navigate the pathway to treatment.
So can you be fired for going to rehab? A variety of laws exist which provide protection to people seeking treatment. If you’re considering a rehabilitation program for your substance abuse problem — or if you’re dealing with terminated employment for addiction treatment — it’s important for you to understand your rights under the law.
FMLA Protections for Treatment
The first law that protects people seeking substance abuse treatment is the Family and Medical Leave Act (FMLA). Broadly, FMLA allows eligible employees to take a reasonable amount of unpaid leave for a variety of medical and family reasons. For example, people take FMLA leave after the birth of a child or to provide medical care of an immediate family member.
People also take an FMLA-protected leave of absence when they can’t work due to a serious health condition like a substance abuse disorder. With FMLA, you can have up to 12 weeks of leave time to get sober and healthy.
FMLA gives people the confidence that they won’t lose their jobs or their benefits when they take this leave, and it offers people recourse when their employers inappropriately retaliate against them for seeking treatment.
FMLA protects many American workers, but there are some eligibility requirements:
- You must be an employee of a covered employer. Public schools are automatically covered employers, as are public agencies at the local, state or federal level. Eligibility is trickier to determine in the private sector. Private companies are only considered covered employers if they have 50 or more employees.
- You must be an eligible employee. To take FMLA leave, you must have worked for at least 12 months for a covered employer. You must have logged at least 1,250 hours with that employer in the preceding 12 months. Finally, private sector employees must work in a location that’s within 75 miles of a site where their employer has at least 50 employees.
- You must provide proper notice. You can’t just disappear from work and request FMLA leave afterward. The law requires you to follow your employer’s usual procedures for requesting leave in advance and in a timely fashion whenever reasonably possible.
- Your employer may require certification. Employers may require employees seeking FMLA leave to have their health care provider certify their condition and the need for the leave. For this to be the case, employers need to publish this policy clearly and apply it fairly to all employees.
It is important to note that absence because of an employee’s use of substances, rather than for treatment, does not qualify for FMLA leave. Employees should also be aware that, pursuant to Federal Regulations, treatment for substance abuse does not always prevent an employer from taking employment action against an employee. While an employer may not take action against an employee because the employee has exercised his or her right to take FMLA leave for treatment, 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, the employee may be terminated pursuant to that policy whether or not the employee is presently taking FMLA leave.
All told, FMLA absolutely can protect your employment and benefits while you seek substance abuse treatment at a rehabilitation center. However, there are some requirements that you and your employer need to meet. The admissions staff at a treatment center can help answer some of your questions about these requirements.
People also gain peace of mind and confidence about their decision to seek substance abuse treatment when they speak with a trained and experienced attorney. A consultation is a valuable first step on the road to recovery.
ADA Protections for Treatment
The Americans with Disabilities Act (ADA) also provides a pathway for people to go to rehab for substance abuse treatment without fear of losing their jobs. The ADA’s overall purpose is to protect Americans with disabilities from discrimination, and it applies to all government agencies and businesses which employ more than 15 people.
What does this mean for people considering a rehabilitation program for addiction treatment? ADA considers chemical dependency a disability and provides employment protection for people who undergo rehabilitation or have successfully completed rehabilitation in the past.
You could, for example, use your vacation days to create some time for rehabilitation. You wouldn’t need to explain to coworkers what’s going on, just tie up any loose ends with your current projects at work and set up the details with the rehab facility. ADA largely ensures that your employer couldn’t retaliate against you for this choice — you’re an employee with a disability seeking medical help with your available leave time.
As with FMLA, there are restrictions and eligibility requirements with the ADA. It doesn’t, for example, require employers to give you unpaid leave. It also does not give you permission to abuse substances on the job. Current use of illegal drugs is not considered a disability and is not a protected disability under the ADA. Although no bright line test exists to define “current use” of illegal drugs, courts have generally held that an individual is currently engaging in the illegal use of drugs if the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.
However, the ADA does offer broad guarantees that employers cannot discriminate against you because of a history of substance abuse disorder. For a specific discussion of your circumstances and your employment situation, reach out to an addiction center or an attorney.
Can I Get My Job Back If They Fire Me While I’m Gone?
Seeking treatment for substance abuse is a responsible decision that can have profound effects on all aspects of your life. When you’re sober, you can be a better friend, family member and employee. Even if you lose your job while in rehab, you might be better off in the long run. Besides, who’s to say that you’ll keep your current job if you don’t seek help for your substance abuse? Seeking help is the right thing to do.
So what happens if you lose your job while you seek treatment?
First, keep in mind that FMLA protects people from wrongful termination. If you meet FMLA’s eligibility requirements and followed the law’s guidelines, but your employer improperly terminated your employment anyway, you may be eligible for recourse. This recourse may include reinstatement to your position, FMLA leave status and compensation for lost wages and benefits.
Similarly, the ADA might protect your employment. Each ADA case is considered separately, so consult with an attorney to determine if you were a victim of wrongful termination or employer retaliation.
It’s important to remember, though, that the ADA also establishes rights for your employer. While the ADA broadly prevents discrimination against people with disabilities, the law recognizes that different workplaces have different needs. Your employer may have the right to terminate your employment or transfer you if your substance abuse disorder prevents you from completing your work assignments competently or safely.
Again, consult an experienced attorney if you believe you are the victim of employer retaliation. We can help you understand how the law applies in your specific circumstances.
Will I Face Negative Consequences at Work After Receiving Treatment?
Some people worry they might be treated differently at work after getting treatment for substance abuse. It’s unfortunately true that a stigma still exists in society against people with mental health concerns broadly and against those with substance abuse problems specifically. Studies find that people with substance abuse disorders are frequently stereotyped as dangerous, unpredictable, incapable of making good decisions and even immoral.
While you can’t control what other people think, you do have some control over the situation. First off, you have confidentiality rights regarding your substance abuse disorder. Regulations from the Department of Health and Human Services require your employer to maintain confidentiality about your substance abuse problem, just like any other medical issue. Your boss cannot gossip about you without violating the law.
You might find, though, that the people in your life are much more understanding and supportive about substance abuse than you expect, especially when they see you making a clear commitment to getting the help you need. If they’re close to you, they have probably already seen the negative effects in your life caused by addiction.
Working with your employer and human resources office to arrange time for substance abuse treatment will require you to open up about your struggles. It won’t be easy, but you might be surprised about the support and understanding you find.
Will My Health Insurance Cover Substance Abuse Rehabilitation?
It’s not uncommon for people who struggle with substance abuse to have financial struggles, as well. An addiction can consume finances that you need for daily expenses and also lead to lost time at work.
Getting help is the best long-term financial decision, but you may need some help with financing your treatment.
Many Americans receive some insurance coverage for substance abuse treatment. The Affordable Care Act (ACA) requires health insurance plans to include some coverage of mental health and substance abuse services. However, the amount and kind of coverage varies by plan. For your insurance provider to cover addiction treatment at a rehab facility, you will typically need to provide proof of medical necessity.
As you might guess, insurance providers have a specific set of criteria for demonstrating medical necessity. Talk with your health care provider and insurance company about your specific situation, but know that you’ll need to show you’re strong enough mentally and physically to benefit from rehabilitation. Your substance abuse disorder will need to be diagnosed, and you’ll need evidence that less-intensive treatment would likely be ineffective.
Even if your insurance company declines to cover your rehabilitation, you should know you still have options. A good treatment center commits to getting you the help you need and may arrange a payment plan with you.
Help with substance abuse is also available through other organizations. Perhaps your employer offers counseling services through an employee assistance plan (EAP). There’s almost certainly a mutual-support group like AA or NA in your area where you can meet and talk with people who face similar challenges. Organizations around the country recognize the dangers of substance abuse and look for opportunities to help.
Pennsylvanians Need Help With Substance Abuse
As a law office located in Pennsylvania, we’re keenly aware of the problems with drug and alcohol addiction in our state. The sad truth is that Pennsylvanians suffer from substance abuse problems. In 2017, 5,443 Pennsylvanians died from drug overdoses, a 43.4% increase from the previous year. No other state in the country had a greater increase that year in the number of drug overdoses.
Why are Pennsylvanians struggling so much with drug addiction? Like many other states, we grapple with the long-term consequences of addiction to prescription opioid painkillers. The leading cause of drug deaths in the state is fentanyl, though drug treatment centers report that heroin is the most commonly used drug by people seeking admission.
There is hope for the future, though. Communities around the state find that when hospitals, police and treatment centers work together, lives can be saved. In 2017, Berks County bucked the state-wide trend and decreased the number of drug deaths.
How did Berks County accomplish this? By equipping police with naloxone, an opioid antagonist that can reverse the effects of opioids and prevent overdose. They established a program that helped drug abusers go straight from the emergency room to a treatment center.
When law enforcement and treatment facilities work together with government agencies and community organizations, significant changes are possible. Our office is proud to be one small part of Pennsylvania’s effort to combat substance abuse. By fighting for the right to seek treatment, we help people with addictions make the right choice for themselves and their communities.
Help Is Available for You
It’s very likely that you still have questions about how substance abuse treatment might affect your employment. While there are laws that establish and protect your rights, it’s not always easy for people to determine how the law applies in their particular circumstances. That’s okay — you have a network of people around you that can help you navigate these concerns.
Our Pennsylvania-based practice is here to help you understand how the law applies in your situation. We’ve helped people like you make plans for getting the help they need.
We’re also well-equipped to help you fight back if you have been a victim of wrongful termination. If you’re in Pennsylvania and you’ve been fired for getting treatment, please contact us. No one should be punished for making the responsible choice of seeking help for their addiction. Help us send the message that Pennsylvanians will work together to ensure that people with substance abuse disorders can get treatment without fear of retaliation.
Whatever your situation, whatever your addiction, get the help you need. If you need someone to talk to so you can understand how the law protects you in your circumstances, please don’t hesitate to reach out.