BLR's FMLA expert says: "There are two likely scenarios in this case, I will provide an answer for both since the facts are not clear from the question:
(1) Absence due to substance abuse (legal or illegal) is specifically excluded from FMLA coverage. Note, however, that treatment for the substance abuse (and the concurrent absence for treatment) is a legitimate reason to take FMLA leave. For example, if an employee who is an alcoholic, is incarcerated for DUI the time spent incarcerated is not FMLA protected. However, if that employee is being treated by a health care provider for alcoholism and referred to a rehabilitation program, the time spent in rehabilitation is covered.
(2) Absence due to a serious injury received while committing a crime (i.e., employee who is shot while fleeing from a crime) is not specifically addressed in the FMLA or the regulations. The employer may take employment action against this employee if the employer has an established policy, applied in a nondiscriminatory manner that has been communicated to all employees, that employees may be terminated for criminal activity. The employee may be terminated under those circumstances."
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