Leaves of Absence for Alcohol and Drug Rehabilitation

Substance use and related mental health issues have significant impacts on our society. Substance use disorders leading to impairment caused by the recurrent use of alcohol or other drugs (or both) cause many individuals not to meet major responsibilities or do as well as they would otherwise at work. According to findings from the 2019 National Survey on Drug Use and Health, 139.7 million Americans consumed alcohol in the past month, and 35.8 million Americans used an illicit drug in the past month. According to another report, in 2020, 57% of employees in the workforce lost ten or more hours of productivity per week due to substance abuse. According to the same report, 45% of employees are comfortable seeking help from their employers on mental health issues, which are often intertwined with substance use disorders. 2020 Behavioral Health Impact Update. (November 2020). The Standard.

Given the extent of substance use disorders in society and the workforce, it is fortunate that several laws have been enacted to aid workers in seeking help from their employers to recover from their substance use disorders and participate in the workforce. One such law is California Labor Code section 1025, which states that if an employer employs 25 or more employees, the employer shall "reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program, provided that this reasonable accommodation does not impose an undue hardship on the employer." “Undue hardship” in the context of this statute should have the same meaning as defined in the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12999. “Undue hardship” means an action by the employer requiring significant difficulty or expense. California Government Code section 12926(u). An “undue hardship” is also any action by an employer “that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees.” California Labor Code section 230(f)(6). Therefore, an employer with 25 or more employees is not obligated to accommodate an employee who wishes to voluntarily enter and participate in an alcohol or drug rehabilitation program if doing so would require significant difficulty or expense (e.g. would seriously disrupt operations) or would affect the safety of other employees (e.g. would result in understaffing that creates a workplace hazard). One of the reasons entitlement to a leave of absence from work for alcohol and drug rehabilitation under section 1025 is limited to employees working for employers who employ 25 or more employees, is that larger employers are more able to assign other employees to perform the duties of an employee on leave without imposing an undue hardship on the employer.

Understandably, section 1025 does not prohibit an employer from “discharging an employee who, because of the employee’s current use of alcohol or drugs, is unable to perform his or her duties, or cannot perform the duties in a manner which would not endanger his or her health or safety or the health or safety of others.” Rather, the purpose of section 1025 is to provide employees with substance abuse disorders the opportunity to get help before they reach the point where their substance abuse disorders prevent them from being able to perform their job duties satisfactorily.

A live-in alternative to incarceration rehabilitation program with 25 or more employees with a special focus on substance abusers is not required to accommodate employees who wish to voluntarily enter and participate in an alcohol or drug rehabilitation program so long as the employees are participating in operations owned and operated by the program and so long as all revenue generated by the operation are used for the support of the program. California Penal Code section 8002.

An employer must make reasonable efforts to keep private the fact that the employee has enrolled in an alcohol or drug rehabilitation program. California Labor Code section 1026. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191, may also prohibit employer disclosure of protected health information related to leaves of absence from work for alcohol or drug rehabilitation programs.

An employer is not required to provide an employee with time off with pay to attend an alcohol or drug rehabilitation program. However, an employee may use any accrued sick leave to offset or partially offset the loss of income he or she will sustain while attending an alcohol or drug rehabilitation program. California Labor Code section 1027. An employee may also be entitled to State Disability benefits so long as a court did not offer the employee the option to enter a drug or alcohol treatment facility as an alternative to serving time in jail for committing a crime.

If an employee has been denied leave to which he or she is entitled under section 1025, he or she may file a complaint with the Labor Commissioner. If the Labor Commissioner determines that there has been a violation, it may order the employer to rehire or reinstate the employee, as well as pay for lost wages and attorney fees. An employee must file a complaint with the Labor Commissioner within one year after the occurrence of the violation. California Labor Code section 98.7. A private cause of action allowing an employee to file a lawsuit for violations of section 1025 may also exist.

Under certain circumstances, employers with less than 25 employees may also be required to offer time off for substance abuse treatment as a reasonable accommodation for a disability under the FEHA. The FEHA does not specifically identify alcoholism as a disability. However, the United States Equal Employment Opportunity Commission recognizes that an individual who is an alcoholic is a person with a disability and is protected by the Americans with Disabilities Act of 1990, 42 United States Code section 12101, et seq. (ADA) if he or she is qualified to perform the essential functions of the job. Therefore, alcoholism is a disability under the FEHA, as if the term “disability” under the ADA “would result in broader protection of the civil rights of individuals with a mental disability or physical disability. . . then that broader protection or coverage shall be deemed incorporated by reference into” the FEHA. California Government Code section 12926(n).

Employees may also be entitled to a leave of absence from work in this situation pursuant to the California Family Rights Act (California Government Code sections 12945.1, 12945.2, and 19702.3) or the Family Medical Leave Act (29 United States Code section 2601, et seq.) See also 29 Code of Federal Regulations section 825.119 concerning leaves of absence for treatment of substance abuse.

If you have not been granted a leave to participate in an alcohol or drug rehabilitation program, or if you have experienced negative treatment or termination from having taken a leave to attend such a program, contact the experienced leave attorneys at Kokozian Law Firm, APC. Ask about our free initial consultation.