Law Office of David Miklas, P.A.

management labor & Employment law

Recently this issue was addressed as follows.  An employee worked for an employer for 16-years with no discipline. The employee sought treatment from a physician for mental health issues, and substance abuse and dependency.  The physician diagnosed him with severe depression, acute anxiety and substance abuse dependency.  The employee utilized the employer’s EAP, which is a work-based intervention program designed to identify and assist employees in resolving personal problems (i.e. marital, financial and emotional problems; family issues; substance and/or alcohol abuse, etc.) that may be adversely affecting the employee’s performance.

Can we fire an employee with mental health issues while he is on EAP in Florida?

The employee filed a charge of discrimination with the EEOC, received a Right to Sue letter and sued the employer in South Florida, alleging the business discriminated and retaliated against the employee on the basis of his age (46) and disability status, interfered with the employee’s FMLA rights, and retaliated against the employee for exercising his rights under the Family and Medical Leave Act (“FMLA”), Florida Civil Rights Act (“FCRA”), and the Americans with Disabilities Act (“ADA”).

Asked another way, in Florida, can an employer terminate an employee who utilizes the Employee Assistance Program (“EAP”)?

The employee’s company vehicle was involved in a motor vehicle accident, which he reported to his employer, and promptly filed a police report and insurance claim. The employer launched an investigation into the accident. Three months later the employee informed his supervisor that stress, work and personal issues were affecting his mental health.  The employer granted him three-days of leave. During this leave the employee called his supervisor and disclosed that he has been seeking treatment from a doctor and was diagnosed with severe depression, anxiety and substance abuse dependency.  The supervisor recommended that the employee use the EAP.  That same day, the VP of Human Resources contacted the employee to inform him that he was being suspended with pay pending an investigation into the vehicle accident. The employee mentioned his mental health issues and that he would continue to use the EAP for treatment.  A couple days later the employee advised the employer that his physician recommended that he take FMLA leave and the employee requested help with applying for FMLA benefits.  Five days later the employer terminated the employee.

Specifically, the employee claimed in his lawsuit that he was disabled under the law due to his severe depression, acute anxiety and substance abuse dependency. The employee alleged that the employer failed to accommodate his disabilities by not allowing him to take medical leave without repercussions to his employment (i.e.  suspension), and by terminating him so soon after he disclosed to the employer that he was suffering from a worsening medical condition.  Further, the employee claims that the employer interfered with, restrained, and denied his attempt to exercise his FMLA rights by 1) ignoring his requests for FMLA information and for assistance with the FMLA application process, and also 2) terminating his employment in retaliation for his attempt to exercise his rights under the FMLA.

            This matter was initially filed in state court by the employer has now removed it to federal court in Miami, FL. The "facts" in this article were taken from the lawsuit.

Although the Florida business may be successful after litigating this case, this demonstrates another example of how a Florida company may be able to avoid a discrimination lawsuit by training its management.


If you are an employer and need any assistance in handling FMLA or ADA matters or issues dealing with disabilities concerning your Florida business, please promptly email the Law Office of David Miklas, P.A. at 1-772-465-5111.

You can read more of our employment law articles on our legal updates page.

If you know a Florida business owner or Florida human resources professional who would benefit from this article, please share it with one click to social media or email.