My employee has informed me that they will be entering an alcohol rehabilitation program. Can we terminate their employment? Does it make any difference if they're a new employee and has told me that they have been in two other rehabilitation programs?

Under California law, an employer who regularly employs 25 or more employees must reasonably accommodate an employee who voluntarily enters drug or alcohol rehabilitation and also must protect the employee’s privacy in regard to being in rehabilitation. This law applies to all employees, even new employees, and does not require that an employee satisfy any eligibility of work requirements.

According to Labor Code Section 1025, an employee is protected if they voluntarily enter a rehabilitation program. There is no requirement that the employee be limited to one rehabilitation program or that the employee complete the program.

As long as the employee is in rehabilitation and the employer is able to reasonably accommodate the leave, the employee’s job may be protected. As to multiple rehabs within the same year, an employer may want to check with legal counsel if claiming that it is unable to provide reasonable accommodation and that doing so would result in an undue hardship.

Labor Code Section 1025 does not prohibit an employer from refusing to hire, or discharging an employee who, because of the employee’s current use of alcohol or drugs, is unable to perform their duties, or cannot perform the duties in a manner that would not endanger their health or safety or the health or safety of others.

An employer covered by the California Family Rights Act (CFRA)(five or more employees) and the Family and Medical Leave Act (FMLA)(50 or more employees) may also be required to offer an CFRA/FMLA leave to the employee. That law will apply if the work eligibility requirements are met and the employee provides certification from a medical provider that indicates there is a serious health condition. The CFRA and FMLA does limit the leave to 12 weeks during a 12-month period.

As to the fact that the employee has informed the employer that they have already been in two rehabilitation programs, they may be protected under the Americans with Disabilities Act (ADA) or the state Fair Employment and Housing Act (FEHA) for having a history of alcohol addiction. Although these laws do not protect current use of alcohol, a history of addiction or the employer’s perception that the employee is addicted may protect the employee.

Federal ADA protection applies to employers of 15 or more employees state; FEHA applies to employers of five or more employees.

As each situation may vary and there may be multiple laws that may apply to protect employees from losing their job, it is best to consult with legal counsel before terminating any employee who may be in rehab.

You can find more information in the Drug or Alcohol Rehabilitation and Laws Protecting Employees with Disabilities sections of the HR Library.