Is a Leave of Absence an Option?

You may find a loophole using the Family and Medical Leave Act (FMLA) of 1993. Under this legislation, your company is required to give you a leave of absence (unpaid), after which you can return to your existing position or an "equivalent" role. This can be a good option if you are required to undergo a drug rehabilitation program which would require you to take time away from work. You could go to rehab, have a detox cleanse, and your job would be kept for you to return to when you're ready.

The only issue with this may be whether or not you qualify. The FMLA is a Federal law and this means that it is quite restrictive with a lot of conditions. If you do qualify however, then it can help significantly should you test positive to a drug test at work.

Does the FMLA apply in your company?

Your employer and you must both satisfy specific requirements in order to be covered by the FMLA. The employer must be in the private sector and it must employ 50 or more workers within a 75 mile radius. Each of these 50 or more employees must work every business day for 20 or more workweeks during the current or previous year.

Requirements of Leave

If you and your company do come under the FMLA, then your company is obliged to provide you with leaves of absences. You would be entitled to 12 weeks per year of medical and family leave, and this would be unpaid. You are free to take this leave in one block or in several chunks. When your leave his finished, you will usually be entitled to go back to your regular job or an equivalent position. The term "equivalent" here means that the pay, benefits and other terms of employment must be the same.

Are you Eligible?

You and your company must both be eligible in order to enjoy the benefits of the FMLA. Your eligibility is based on how long you have worked for the company and why you need to take the leave.

Duration of Employment

You are required to have been employed by your current company for at least 1 year. This can be cumulative or sequential. If you are employed on a seasonal or part-time basis then you may still qualify if you can show that, during the previous year you have worked 1,250 hours or more. This is about 24 hours per week.

Reason for Leave

The reason that you are requesting a leave of absence must relate to a "serious health condition". This condition may apply to either yourself, or your spouse, parent or child. The Federal regulations define a serious health condition as a medical illness, impairment, injury or any other mental or physical condition which requires you to have inpatient care or treatment including a time of incapacity. The legislation also defines what is meant by incapacity. If you believe that you do qualify for the FMLA, then you should review your situation with a professional (a lawyer or counselor) who has experience dealing with this law.


Employers will generally ask you to provide a certificate from a health professional that proves the existence of the medical condition that is being suffered by yourself or your family member. This certificate must explain that the person needs inpatient care and treatment. A model certificate has been produced by the Department of Labor and you could use this. It is basically just a letter from a doctor to your employer.

It doesn't shield you from Discipline

Having a leave of absence approved under the FMLA doesn't mean that you will be free from any disciplinary measures taken by your employers. You boss is still free to discipline you where you have broken the rules of a company policy regarding drugs. It may actually be a waste of your time to try getting leave with a guarantee of returning to your job if your employer plans on firing you anyway which would then mean that you don't actually have a job waiting for you after the leave.

If you are in this situation, then the laws that will apply are all Federal laws. They are designed to ensure that recreational drug takers are not protected from discipline by being classified as drug addicts. There is however, one loophole that may apply to your situation.

Firstly, your company is not allowed to discipline you due to the fact that you choose to exercise your entitlement to a leave of absence for treatment under the FMLA. If you think you might qualify for treatment, then you shouldn't hesitate in exercising this right.

Secondly, your company can only take disciplinary action if they have a company policy regarding drugs in the workplace and this policy is being enforced in a way that doesn't discriminate among employees. This policy must have been clearly advertised to employees, and it must state when an employee can have their employment terminated. These phrases each have possible loopholes. You may be able to argue that your workplace doesn't have a drug policy, that the policy is applied in a discriminatory fashion, that it hasn't been communicated to employees, or that the policy doesn't provide clear grounds for termination. In such cases, the company will not be able to fire you and you will be allowed to take your leave of absence under the FMLA.