An agency questioned the need for OPM's supplemental guidance on the treatment of substance abuse. The agency stated that it believes the guidance is inappropriate, especially in assuming that an employee's drug abuse problems may affect his or her job performance. However, OPM believes the guidance is appropriate to acknowledge concerns expressed by many agencies about the treatment of substance abuse as a serious health condition, as well as the interplay between the various rules concerning adverse actions, performance-based actions, and reasonable accommodation. We restate that the treatment of substance abuse may be included as a condition covered by the FMLA, but absence because of the employee's use of the substance, without treatment, does not qualify for leave under the FMLA. Also, the exercise of an employee's right to take leave under the FMLA for treatment of substance abuse does not prevent an agency from taking action against the employee, provided the agency complies with the Rehabilitatio Act of 1973 (29 U.S.C. 701 et seq.), where appropriate.
Consistent with DOL's final regulations, the definition of "serious health condition" has been significantly revised. The criteria used to determine whether a condition may be considered a serious health condition have been grouped into two major categories--i.e., inpatient care or continuing treatment by a health care provider. A major change is the addition of chronic conditions, such as asthma, diabetes, and epilepsy, that continue over an extended period of time (i.e., from several months to several years), often without affecting day-to-day activities, but may cause episodic periods of incapacity of less than 3 days.
Another change is the addition of serious health conditions that are not ordinarily incapacitating (at least at the current state of the patient's condition), but for which multiple treatments are being given because the condition would likely result in a period of incapacity of more than 3 consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy or radiation for cancer, dialysis for kidney disease, physical therapy for severe arthritis, or multiple treatments for restorative surgery after an accident or other injury). The definition of long-term, chronic conditions such as Alzheimer's or a severe stroke has been modified to delete the reference to the condition being incurable and to require instead that the condition involve a period of incapacity that is permanent or long-term and for which treatment may not be effective. Other changes involve clarifying terms and providing information on the types of conditions that are not considered serious health conditions.
Section 630.1203(a)(4)of the interim regulations provides that an employee is entitled to a total of 12 administrative workweeks of unpaid leave during any 12-month period for a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her position.