In Sons v. Henry County, No. 1:05-cv-0516-DFH-TAB, 2006 U.S. Dist. LEXIS 79604 (S.D.Ind. Oct. 31, 2006). the court refused to dismiss an employee's claim that her FMLA rights were violated when the employer denied her request for FMLA leave to avoid taking a mandatory drug test that she knew she would fail.
Sons worked as a 911 operator for Henry County's Sheriff's Department. Established County policy provided that employees would be randomly selected for drug testing. Employees were subject to termination or other discipline for violating criminal drug statutes, failing to appear for drug testing, or attempting to provide a false test sample. Sons had passed three or four prior drug tests.
On December 18 she was notified that she had to submit a urine sample as part of a drug test. She met with her supervisor and admitted to using Addreall and Prozac. She failed to mention that her use of Didrex. She did not have a prescription Addreall. Her prescription for Didrex had expired several years before. She asked her supervisors if there was any way she could file for FMLA leave instead of taking FMLA leave "to try and get myself taken care of." Her request was denied. She took the test but could not produce a sufficient urine sample for analysis. The next work day she took another drug test, which came up positive for methamphetamine.
Sons met with her supervisor and the County Sheriff about her positive test. She admitted she did not a prescription for Addreall. She did not provide a prescription to her supervisors for the Didrex, but sent one to the Lab that conducted the drug screen. Sons altered the date on the prescription she sent to the Lab from 1999 to 2003 in an attempt to make the prescription look more recent. After initially denying it, she admitted to the Sheriff and her supervisor that she altered the prescription. She again asked for FMLA leave, this time stating that it was on the advice of her doctor at the drug rehabilitation center. Sons subsequently resigned before the results of a pending investigation of the situation was completed. She sued Henry County alleging that it violated the FMLA by twice denying her request for FMLA leave, and by constructively discharging her.
The court initially found that Sons timely notified her employer of the need for FMLA leave. The court found that Sons timely provided her employer with notice of the need for FMLA leave "as soon as practicable" under the circumstances. The court observed:
A jury could reasonably conclude that the gravity of Sons' substance abuse problem was not apparent to her until she actually faced the prospect of a drug test. That is, the impending drug test could have been the event that forced Sons to confront her drug problem head on. At that time, Sons allegedly first asked for FMLA leave so that she could presumably confront her problem immediately.
The Court rejected the employer's alternative argument that Sons' oral notice was insufficient because it failed to alert the employer that she had a qualifying reason for taking leave. The court initially observed that employees must generally give "some indication that the employee actually has a qualifying reason for taking leave, like a serious health condition... However, an employer's actual or constructive knowledge of an employee's condition can satisfy the employee's obligation to mention explicitly a serious medical condition in her initial notice."
Here, the court found sufficient material facts in dispute whether Sons' supervisors were actually or constructively aware of her substance abuse problem to preclude dismissal of the case. In support, the court cited the employee's admission to her supervisor that she consumed Adderall, a class II controlled substance that was not prescribed to her. The court also noted that at the time she was denied leave for a second time the Sheriff knew that she had failed a drug test.
Comment: I find the decision interesting because the court appears to seriously entertain the employee's attempt to invoke the FMLA as a means to deliberately avoid having to take a mandatory drug test. Appearances, however, may be deceiving. The court ultimately awarded summary judgment to the employer because Sons was unable to demonstrate that she suffered any monetary harm as a result of the denial of FMLA leave. The court noted that Sons remained employed and received pay until she resigned. Generally, absent actually damages, an employer's violation of the FMLA will not support a civil suit.
Substance abuse is not a separate FMLA-covered serious health condition. Substance abuse may be an FMLA-covered serious health condition where it meets one or more of the definitions of an FMLA-covered serious health condition. Where it meets one or more of these definitions, FMLA leave is only available for treatment. It is not available for the employee's use of the substance.
The court rejected Sons alternative argument that she would not have resigned if the defendant had granted her FMLA leave. The court noted that the evidence established that Sons' resigned to avoid a public disciplinary hearing, not the denial of FMLA leave. Additionally, the court noted that she would have likely been discharged for violation of the County's substance abuse policy.
Viewed in context, the consideration given by the court of the employee's admitted attempt to invoke the FMLA to avoid taking a drug test she knew she would fail appears to have been influenced by the dismissal of the case on other grounds, and the factual presumptions favoring the non-moving party (in this case, Sons) in summary judgment motions. With that said, the decision would have denied summary judgment to the employer for an employee's admitted attempt to defeat an employer's drug testing policy by requesting FMLA leave to seek immediate treatment. The denial of summary judgment means that the case will likely proceed to trial. Trials are very expensive. Such expense may motivate the employer to settle. In that sense, the decision should be helpful to employees.
The decision implies that, all other conditions having been met, an employer would violate the FMLA by disciplining an employee for refusing to submit to a drug test where the employee has properly invoked their right to immediate FMLA leave for substance abuse treatment. Of course, the employee could be disciplined for violating the employer's policy for the admitted use of illegal substances that gave rise to the immediate need for FMLA leave.
Finally, the employer could just have easily argued that the employee's admitted falsification of her prescription and subsequent denial of same was sufficient, independent grounds for termination.