Interesting scenario...your thoughts please.

[Funforme]

What is the name of your state (only U.S. law)? Texas

Just want to state upfront that I'm not looking to sue anyone. I know I was in the wrong here and I'm not trying to sugar coat it. I take full responsibility for my bad decisions. I'm just curious what some other bright minds might think about this situation.

I was working in a professional position. My job requires a license issued from the state. Been with this company for 3 years. My health insurance provides coverage for drug/alcohol dependence. There is also an EAP that provides drug/alcohol counseling and other programs.

So I knew I was having an issue with drug dependency (for about 8 months). I had NEVER had an issue at work. No errors, no suspicions, no write ups, no nothing. But I knew I had to take care of myself.

So I go into my supervisors office (mistake #1 but I think in hind sight I was wanting her support and guidence before going to HR cuz I was scared). I'll try not to make this all long and drawn out....
I told her I had a problem and that I needed to know what I needed to do to take FMLA. I told her I had already made arrangements to go inpatient, and I was sorry for needing to take this leave (& my absence would not cause a strain at my work) and asked what I needed to do to get leave. About 1.3 seconds later I'm sitting in HR with 3 people in suits...this was not going according to my plan.

Basically they tell me I have to take a drug test (that it's policy) so now I'm really scared (because of my license) These were my choices: if I took the test it would "save my job" & they would be able to offer me a "return to work" agreement after I got treatment. Or if I refused to take the test I would be fired on the spot. So now I'm seriously in panic mode worried about saving my job. So I took the test...they put me on leave immediately, and I went to rehab that day.

Fast forward a few weeks and I call to let them know I'm doing well. I told them I was out of inpatient but that I was still wanting to take off a few more weeks. They asked me to come in. And you guessed it...they fired me for a positive drug test.

Now I'm in an "at will state" and I get that. And trust me there's a million things I would do differently if I could turn the clock back. I politely reminded HR lady that she told me I would be offered a "return to work agreement" she tells me that she said they "might" then proceeds to tell me I must not have heard her right because I was on drugs. The ONLY reason I took the test so I wouldn't have the added stress of finding a new job. If I had an inkling that I wouldn't be going back to work there after rehab I would NEVER have taken that test. So now I'm jobless AND having to deal with my profession's "impaired program" making it even more difficult to find a job.

So obviously there *******s and last I checked that's not illegal...but aren't I allowed to take medical leave for treatment of an illness without retaliation? Maybe I'm wrong. Maybe I'm just pissed. But were my rights violated?

 

[OHRoadwarrior]

You had no obligation to tell them why you were taking leave. That is where you screwed up. A doctor certifying you off is what you needed.

 

[cbg]

This is a very, very tricky area of law. On the surface, and based on the facts you've presented, they are *probably* on firm ground.

But on the off-chance that there is an out for you here (and I have a very specific one in mind), may I ask how long you were out on leave? It will make a difference as to the viability of the defense I am thinking of for you.

 

[Funforme]

In rehab for 4 weeks. Fired 2 weeks after discharge. Was only planning to take off 9 or 10 weeks and return way before fmla time expired.

In hind sight it was extremely stupid of me to open my big mouth. Silly me I thought I was doing the right thing by being honest and asking for help. I'll never make that mistake again!

 

[OHRoadwarrior]

In rehab for 4 weeks. Fired 2 weeks after discharge. Was only planning to take off 9 or 10 weeks and return way before fmla time expired.

In hind sight it was extremely stupid of me to open my big mouth. Silly me I thought I was doing the right thing by being honest and asking for help. I'll never make that mistake again!

I feel bad saying this, however, you are 100% correct. I have been balancing this very thing for years. I have been off on FMLA for 2 months now. Luckily, I have managed to find doctors who will help me balance on the fence. I still don't know whether I will be returning to work, however, medically nothing has come up that my neurologist cannot cover me on, if she chooses to. Good luck re-establishing yourself.

 

[cbg]

You *may* have an ADA claim here. Not definitely - the fact that you had a positive drug test while at work works against you even there. The ADA does not protect current drug use. And that's what you were fired for - the positive drug test.

The ADA does, however, protect against discrimination on the basis of prior rehab. It is not impossible that a strict reading of the ADA could determine that allowing you to go to rehab is a reasonable accomodation.

This is very, very much a long shot. Your rehab was current, not prior. You still had a positive drug finding, which is not protected. If you'd exceeded your FMLA time, I wouldn't even try since you could be fired legally for that. If you'd been fired immediately after the positive finding, I wouldn't be here. But it's just barely within the realm of possibility that it could be seen as a violation of your ADA rights to wait till after you finished rehab to fire you.

Talk to one or two employment attorneys. If none of them see a violation, don't press it.

 

[Funforme]

Call me crazy, but when someone comes to you and says "i have a drug problem and I'm going to get help" common sense says their gonna have a positive drug test. I know this whole thing is my bad and I don't expect anyone to feel sorry for me. I'm just pissed cuz I felt like I was doing the right thing, and got punished for it. And they lied to me to "get me" to take the drug test. Cuz if I would have said I quit, got up, and waked out. I still would have gotten help. I would have no issues with my license. All I would have is a little "blemish" of leaving a job with no notice.

Life's not fair is an understatement!

 

[ShyCat]

I would have no issues with my license.

Call me crazy, but I believe an impaired professional SHOULD have issues with their license.

 

[LdiJ]

Call me crazy, but I believe an impaired professional SHOULD have issues with their license.

Yeah but what is worse? An impaired professional who is getting help, or an impaired profession who avoids getting help in fear of license problems?

 

[jiggy78]

Just to be clear... when you told them you were "doing well" you were still actually using? Or was this a drug test that can be positive months after you used last?

 

[Funforme]

This is what I don't understand... And I'm paraphrasing here.

The ADA does not protect "current" drug users. I get that. However, an employer can not refuse to hire or fire someone because they are in treatment for substance abuse...and an employee is allowed to take up to 12 weeks off to get treatment with out retaliation. But no one goes to rehab or seeks treatment that requires them to take weeks off of work because they have a "history" of drug use. It's a complete catch 22.

I will say that I'm doing my best to look on the bright side. I'm clean and sober, and I'm not complaining about the license issue. I deserve to be monitored, and I did self report.

I would like to believe that the person who comes forward, comes clean, asks for help, ect would be treated with dignity. This is the reason people don't ask for help.

Jiggy78 I called them 2 weeks after rehab to check in and tell them I wanted a few more weeks off. This was weeks after the drug test.

 

[cbg]

And that's why I'm suggesting it as a possibility. However, the intent of the law is to provide a level playing field if someone had a previous history of drug use and is now clean - not to give special rights to current users.

 

[commentator]

There is a very wide gap between "life isn't fair" and "I did a stupid thing." Rehab may be where you learn to deal with this. And then again, it may not. The reason they aren't so sweet on people who go to rehab is that rehab sometimes doesn't work. Atl least not the first time.

You went to your supervisor and confessed you were dealing with a drug problem and felt like you needed to go to rehab. you implied very loudly that you had been and were currently using drugs on the job, coming to work impaired. That wasn't the very smartest thing in the world to do from a career standpoint. As you said, if you'd simply quit the job and then entered rehab, you'd be in the same position, with no spot on your record, no danger of having references issues, having it on record for being fired for having failed a drug test.

Why in the world did you go to your supervisor, why were you so scared of going to HR to request a FMLA leave? Why did you think it was their responsibility to treat you favorably and with encouragement? That's the job of the treatment center, not your employer, whose trust you were abusing by working while impaired. What did you think they were going to do, heap praises on you for having "fessed up"? Suggest nice rehabs you might be able to get into that were covered by their insurance?

It sounds as though you are very proud of yourself for having decided you had a problem and needed rehab. As well you should be. Your mistake was sharing that fact with the one group of people that were heavily invested in your NOT using drugs and in your behaving very competently while in their facility. You expected them to give you a warm fuzzy for finally doing the right thing. But what if you had showed up on their doorstep with a whole bunch of product that you had stolen from them through the last couple of years and told them you were now confessing and bringing it back to them and you know they'll forgive you. Is your expectation really that they'll be so happy for you that you've gotten this attack of conscience and done the right thing that all will be forgiven?

What if they let you go and don't tell your next employer about your issues, which they were made aware of by you? Or even what if they had given you the old job back, no hard feelings, great expectations that your whole problem is over. What if it turned out that your rehab didn't take, or that you've relapsed, and your have an accident or issue at work due to your problem? Would this have been them acting in the company's best interest?

Of course, in hindsight what you very well should have done is gone to your family doctor and gotten a referral to be away from work to attend a rehab, and then gone in and presented your request for FMLA to your HR department. And if they had somehow figured out what you were going to be out for, which would have been highly unlikely (might have been mental health issues ) it is still doubtful they'd have requested you take a drug test before you left on your leave.

But really, they didn't fire you immediately when they got the results from the test back, it doesn't sound like. It sounds like they waited to fire you until you called them and told them you were out of Inpatient rehab but "wanted to take a few more weeks off." Did you have a doctor's note for that? How long was your original FMLA time requested? If you'd just been off for 12 weeks, they could have legitimately fired you for staying out (regardless of reason) for more than 12 weeks. But under the circumstances, it is a very very slim chance they violated ADA by firing you for the failed drug test. As far as promising you that you would be allowed to return to work ....it's going to be very hard to show they ever promised that. Firing you for refusing a drug test? Perfectly legal, and in most places policies.

I'd file for unemployment insurance benefits now that I'd been terminated. But the chances of your being approved are not tremendous. It will depend a great deal on what the drug testing policies are for this particular employer.

 

[Funforme]

Commenter...i don't disagree with anything you said. Like I stated previously I'm not looking for sympathy. This entire situation is of my own doing.

The reason I opened my big mouth was because I was desperate for help and not thinking very clearly. I've never said that I deserve sympathy, or that I don't deserve every thing I've been through...cuz I do.

And for the record I never used at work or came to work impaired. Although I was headed in that direction.

I was just curious to hear from others their thoughts on FMLA ADA ect. The FMLA law clearly states that one can take leave for the treatment of substance abuse. I had read that over and over before I went in to confess and I honestly thought that law offered me some protection, but it didn't. Lesson learned.

I do take full responsibility for my actions. I don't blame them for firing me.

 

[cbg]

The FMLA statute says that you can't be fired FOR TAKING FMLA. It does not offer you protection for something that happened regardless of your taking FMLA. If you were relying on FMLA to offer guaranteed protections, you were relying on the wrong law. FMLA says you can't be fired for taking leave. It does not say that you can't be fired for something you did on the job prior to taking leave.

You *may* have some protections under the ADA. But as I've already explained, under this specific set of facts it's by no means a sure thing that your employer was prohibited by the ADA for firing you for a positive drug test. You are free to explore it further. But if you can find a lawyer who thinks you have a sure enough case that he will take it on (once you have your right to sue letter from the EEOC, of course) without a very hefty retainer up front, jump on it.