Migraine make you too sick to work? Your boss has to listen!

Megan Oltman Community Member April 13, 2010
  • There's good news for people who have to miss work because of Migraine or other headache disorders.


    The burden on employees of certifying that they are too sick to work under the Family Medical Leave Act (FMLA) has just been made a little easier by the Federal Courts. In its first time looking at this issue, the United States Court of Appeal for the Third Circuit (covering Delaware, New Jersey, Pennsylvania and the Virgin Islands) recently held that in determining if an employee was too sick to return to work under the FMLA, the courts must listen to an employee's own word as to his or her illness.


    In Schaar v. Lehigh Valley Health Services1, the 3rd Circuit held that an employee who had a doctor's certification of illness for part of her absence, and her own testimony that she was not well enough to return to work for the remainder of her absence, was protected from a retaliatory firing under the FMLA. Rachael Schaar was a medical receptionist who went to her doctor with a severe urinary tract infection. The doctor wrote her a note stating that she would be out of work for two days, and that it was "possible although very unlikely" that she might be unable to return to work even after three days. Schaar stayed home for a total of four days, two of which were previously scheduled and approved vacation days. She was fired six days after her return to work.


    FMLA provides that for employers of 50 persons or more, employees are entitled to up to 12 work-weeks per year of unpaid leave to care for an ill family member or for themselves when they are ill. FMLA provides that employees cannot be fired, disciplined or have adverse action taken against them due to taking FMLA leave. They must have a doctor initially certify to their illness. In Schaar the 3rd Circuit reversed the Federal District Court for the Eastern District of Pennsylvania and held that lay testimony, in other words the employee's own testimony as to his or her medical condition, in combination with medical testimony, could establish that the illness was serious enough to justify the leave.


    FMLA is a federal law, so the federal courts decide how it is to be implemented by employers in the various US states and territories. Every Circuit that has decided this issue has gone at least as far as the 3rd Circuit in Schaar: the 5th (covering Louisiana, Mississippi and Texas), 7th (covering Illinois, Indiana and Wisconsin), 8th (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and 9th (covering Alaska, Arizona, California, Guam, Hawaii, Idaho, Mariana Islands, Montana, Nevada, Oregon and Washington). The 5th Circuit ( in Lubke v. City of Arlington2) and 9th Circuit (in Marchisheck v. San Mateo County3)  have actually ruled that that lay testimony may be enough all by itself to establish the seriousness of the illness for FMLA purposes, even without a doctor's certification. The 9th Circuit in Marchisheck went so far as to say that the patient's testimony as to his incapacity should be listened too even if it is in conflict with the doctor's statements.


  • In practical terms, this means that the burden on employees of establishing the need for FMLA leave has been lowered. For Migraineurs and others with periodically recurring disabilities, this trend could make it easier to take the leave they need without a heavy burden of medical certification for each and every leave day.


    1 Scharr v. Lehigh Valley Health Services, Inc., No. 09-1635 (3rd Cir. 3/11/2010).


    2 Lubke v. City of Arlington, 455 F.3d 489 (5th Cir. 2006).


    3 Marchisheck v. San Mateo County, 199 F.3d 1068 (9th Cir. 1999).


    ~ This sharepost is legal education, not legal advice. No attorney-client relationship is created. ~


    © 2010 Megan Oltman

    Last updated 4/13/10.

11 Comments
  • Anonymous
    Rae
    Apr. 30, 2010

    I work at a small lawfirm that employs less than 50 people.  Since FMLA does not apply here, what rights do I have?

    • Megan Oltman
      May. 01, 2010

      Rae if your firm has 15 or more employees, they are covered by ADA (Americans with Disabilities Act) and have to give you reasonable accommodations for your disabling condition. Reasonable accommodations could be flex time or a better shift, but they are not specifically required to give you extra time off. Read more in Working with Migraines: Rights Under...

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      Rae if your firm has 15 or more employees, they are covered by ADA (Americans with Disabilities Act) and have to give you reasonable accommodations for your disabling condition. Reasonable accommodations could be flex time or a better shift, but they are not specifically required to give you extra time off. Read more in Working with Migraines: Rights Under the Americans with Disabilities Act.

       

      - Megan

    • Anonymous
      Rae
      May. 03, 2010

      Thank you for your reply.  The information provided about the ADA was very helpful.

  • hurting1
    Apr. 29, 2010

    I suffer from seizures and migraines, but they are triggered by the bright lights (flouro-bulbs), loud, group noise and the computer. I have to wear light-filtering glasses, and use a computer filter at home, and I used to have a screen filter at work. Well, I was out on STD, and when I returned the screen-filter was gone. I told them I had to have it to work,...

    RHMLucky777

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    I suffer from seizures and migraines, but they are triggered by the bright lights (flouro-bulbs), loud, group noise and the computer. I have to wear light-filtering glasses, and use a computer filter at home, and I used to have a screen filter at work. Well, I was out on STD, and when I returned the screen-filter was gone. I told them I had to have it to work, but they saud I had to have a medical needs certifcate, and I hd already turned one in. They refused to give me the filter. The glasses really don't do much at work, but help at home. Well, I had a seizure at work, and when I came to my senses, I was outside wandering around. I don't have a clue as to how long I was gone. I was x-ferd to a new manager, and asked agin for the filter, even offering to buy it, but they said they couldn't find one to fit the computer. The last seizure started at work w/an aura, and I left. I shouldn't have been driving, but you're out of it when those happen. I made it home (about 5 miles away), but I had a seizure. The migraines can happen at any time, but they are lessened by medication, and removing triggers. My copany has a home-office division, that would allow me to return to working status, but I have sent a request over 3 weeks ago, and still haven't received any info on it. I'm going to send a certified letter today. I could go back to a working status if they would work with me. I just received a merit raise, so nothing is wrong w/my work, and this would not cause undue expense t the company. I guess I have to hurry up and wait. Maybe this ruling will help, but I live in TN. I may have to get a lawyer.

     

    • Megan Oltman
      Apr. 29, 2010

      Hi Hurting1 - It sounds like it would be a good idea to get a lawyer at this point. And by the way, since we are dealing with Federal laws, the way one circuit court rules does influence how a different circuit will rule. You don't have to be in the 3rd Circuit for these cases to be relevant.

    • hurting1
      Apr. 29, 2010

      Thank you so much for the information! I had brain surgery in 2008, and the company I work for was pretty helpful, but since the headaches are getting much worse while I'm there, they really seem to just want me gone. I have offered to pay for everything, and I have an office at home. I think they see me as a liability since the last seizure started at work,...

      RHMLucky777

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      Thank you so much for the information! I had brain surgery in 2008, and the company I work for was pretty helpful, but since the headaches are getting much worse while I'm there, they really seem to just want me gone. I have offered to pay for everything, and I have an office at home. I think they see me as a liability since the last seizure started at work, and I left. I'm not able to work in the building anymore, unless they give me my own office, and make several changes to the lights, etc, and I know they are not going to do that, but I have made every modification to my home. I'm not supposed to drive at night, and I have asked many times to be given a day schedule, but they tell me there's none available, so I just continued the night schedule. I think I will speak with a lawyer since the company didn't respond to my request for any accommodations. I did send a certified letter today, though. Thank you for giving me the information about the court ruling.

      Christy

  • Skye
    Apr. 27, 2010

    My husband works for a huge national chain with BIG lawyers and "at will" employment which seems to mean that they can fire anyone at their will. My husband recently had a torn retina, breathing problems and other misc. health problems besides helping me with house chores and doctor appointments for both of us.

     

    His work schedule goes something like this:...

    RHMLucky777

    Read More

    My husband works for a huge national chain with BIG lawyers and "at will" employment which seems to mean that they can fire anyone at their will. My husband recently had a torn retina, breathing problems and other misc. health problems besides helping me with house chores and doctor appointments for both of us.

     

    His work schedule goes something like this: Mon. 6am-2:30 pm, Tuesday-off. Wednesday 3pm til 12 am and take an hour for break instead of a half hour so he is there both early and late for meetings, Thurs. or Friday 3:30pm til 12 am or off depending (whichever works for them), Saturday 8am til 4:30pm and Sunday for 11 am til 7:30 pm. A different schedule EVERY day. 

     

    My husband is so exhausted he barely sits down and falls asleep immediately. I am tryingto take care of myself but  somedays the pain is so severe I don't even walk to the bathroom unless its absolutely necessary. Many days I don't go to the kitchen to get something to eat or drink as it hurts too much.

     

    I recently had a new pain evaluation and the PT told me that I really needed to have a schedule and I would feel so much better.

     

    When my husband requested to downgrade his job so he wasn't a department head, and even out his schedule, the headquarters "Human Resources" person said that the only way he could change jobs is if he went to part-time with no insurance benefits and a big cut in pay as they would take back all the raises he has earned in the past 6 years.

     

    That is the way it often works in the REAL world. I don't know which of us will "break down"first.

     

    • Megan Oltman
      Apr. 27, 2010

      Well Skye, unfortunately most employment is "at will" - except those relatively few people who have employment contracts. That means you can quit any time for any reason and you can be terminated at any time for any reason, except for a discriminatory reason. In reality this favors employers more often than not, and means if you don't like the way your employer...

      RHMLucky777

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      Well Skye, unfortunately most employment is "at will" - except those relatively few people who have employment contracts. That means you can quit any time for any reason and you can be terminated at any time for any reason, except for a discriminatory reason. In reality this favors employers more often than not, and means if you don't like the way your employer runs things, as long as they aren't breaking any laws, you can't do much other than get a different job. There's a lot I don't like about the way workplaces are run in this country. I'm glad we have FMLA but it doesn't cover everything. It sounds like your husband's schedule is hard on both of you.

  • Martha M
    Apr. 26, 2010

    I was fortunate to have been employed by a company that made every conceivable concession to try to keep me fully employed but I eventually had to stop working and go on disability. Most companies are not as wonderful to work for as mine was, so this information is both pertinent and essential for people who suffer from migraine and other chronic pain conditions...

    RHMLucky777

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    I was fortunate to have been employed by a company that made every conceivable concession to try to keep me fully employed but I eventually had to stop working and go on disability. Most companies are not as wonderful to work for as mine was, so this information is both pertinent and essential for people who suffer from migraine and other chronic pain conditions who must have the income and healthcare benefits. Thanks for advocating for us and for publicizing this information.

  • mcmurraychick
    Apr. 16, 2010

    as i have found out they can get away with a LOT even with FMLA in place.

     

    for over 2 years i've asked, and even begged to be moved to first shift. i have taken to date 4 notes from the doctor only to be told we have to find something. i finally had a position, was given a transfer date, only to be written up less than 6 hours later ( manager who wrote...

    RHMLucky777

    Read More

    as i have found out they can get away with a LOT even with FMLA in place.

     

    for over 2 years i've asked, and even begged to be moved to first shift. i have taken to date 4 notes from the doctor only to be told we have to find something. i finally had a position, was given a transfer date, only to be written up less than 6 hours later ( manager who wrote me up was there to hear conversation with other manager)

     

    my FMLA has been in place for 2 and a half years. i make sure that it is. but because i have to miss time or leave they still write me up.

     

    now that i have gotten a lwayer involved ( and told them as much today) we will see if i actually get moved this time ( i'm NOT holding my breath)

    • Megan Oltman
      Apr. 17, 2010

      McMurray Chick -

       

      I hope your lawyer can help you get the accommodations you need at work. I know you've had a really rough time, and I'm sorry to hear about it. I can't agree that it doesn't mean much, however. When laws change it may or may not help a particular individual but over time it makes a huge difference to all of us. There were no public wheelchair...

      RHMLucky777

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      McMurray Chick -

       

      I hope your lawyer can help you get the accommodations you need at work. I know you've had a really rough time, and I'm sorry to hear about it. I can't agree that it doesn't mean much, however. When laws change it may or may not help a particular individual but over time it makes a huge difference to all of us. There were no public wheelchair ramps before the ADA passed. Small children worked 14 hour days before child labor laws were passed. There was unquestioned school segregation before Brown v. Board of Education. Good court decisions interpreting the law are not the end of something, but they are the beginning.

       

      - Megan

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