Can you take medical leave for rehab?

What is the treatment-versus-use distinction?

DOL's FMLA Advisor explains that substance abuse treatment may be a serious health condition if the conditions for inpatient care or continuing treatment are met. Leave can be for treatment by a health care provider or on a provider's referral. Missing work because of using the substance does not qualify (DOL elaws FMLA Advisor (opens in a new tab)).

The same DOL page says an eligible employee may also take FMLA leave to care for a covered family member receiving substance abuse treatment.

Who is eligible for FMLA leave?

DOL Fact Sheet #28 lists covered employers, including public agencies such as state and local governments. To be eligible, an employee generally must:

• have worked for the employer for at least 12 months;
• have at least 1,250 hours of service in the 12 months before leave; and
• work at a location where the employer has at least 50 employees within 75 miles.

Eligible employees may take up to 12 workweeks of leave in a 12-month period for qualifying reasons (Fact Sheet #28 (opens in a new tab)). Ask HR how these rules apply to your position.

What does FMLA protect while you are on leave?

DOL Fact Sheet #28A says FMLA leave is job-protected, that group health benefits continue on the same terms as before leave — explicitly including substance abuse treatment coverage — and that employees must generally be restored to the same or a virtually identical position (Fact Sheet #28A (opens in a new tab)). FMLA leave is unpaid, but paid leave may run at the same time under employer policy.

What are the limits of that protection?

The DOL Advisor says an employer may not act against you for using FMLA leave for treatment. However, if the employer has an established policy, applied in a non-discriminatory way and communicated to all employees, that allows termination for substance abuse under certain circumstances, the employer may act under that policy even during FMLA leave.

Can you take FMLA leave a few hours at a time for outpatient or IOP?

Yes, when it is medically necessary. DOL Fact Sheet #28 says eligible employees may take FMLA leave intermittently or on a reduced schedule when medically needed (Fact Sheet #28 (opens in a new tab)). That can fit an intensive outpatient program that meets several mornings a week, or regular counseling and medication visits.

Ask the program for its schedule in writing so your provider can describe the expected frequency and length of visits on the certification.

What paperwork does HR need, and who sees it?

Employers may require medical certification of a serious health condition. Employers may use their own forms, and DOL publishes optional form WH-380-E for an employee's own condition and WH-380-F for a family member's (DOL FMLA forms (opens in a new tab)). The health care provider completes the medical sections.

Under the FMLA regulations, certification and medical-history records must be kept as confidential medical records, separate from usual personnel files. Supervisors may still be told about necessary work restrictions or accommodations (29 CFR 825.500(g) (opens in a new tab)). For more on what employers may learn, see rehab privacy and employment.

Does Empire Plan coverage continue while you are on FMLA leave?

Under FMLA, group health benefits continue on the same terms as if you were working, and DOL says you need to keep making your normal premium contributions. In some cases an employer pays your share and you repay it, usually after you return (Fact Sheet #28A (opens in a new tab)). How your NYSHIP contribution is collected during unpaid leave depends on your agency's payroll and benefits office, so ask your Health Benefits Administrator.

Coverage for the treatment itself still follows plan rules, such as certification for inpatient rehab and prior authorization.

What should New York public employees check besides FMLA?

FMLA leave is unpaid, so many public employees also look at paid leave they already have. Rules differ by employer, title and bargaining unit, so this site does not list figures for any group.

How can you plan treatment around work?

See what employers may learn, and level-of-care details for inpatient or outpatient and IOP care. This is general information, not legal advice.