When Migraines Make You Miss Work: Intermittent Leave under the Family Medical Leave Act

By Megan Oltman Thursday, June 11, 2009

- A
- A
- A

While you cannot be denied other legal rights due to taking FMLA status, and your employer cannot legally interfere with your rights under the Act, there can be impacts to your career. If being out of work a certain number of days means you don't meet certain performance goals, you may not receive the promotions or benefits that would come from meeting those goals. However, the same would be true if you worked while sick and couldn't meet the goals, and you're certainly better off in terms of your career than if you had to stop working altogether!

If you need to take time off due to Migraines, it is best to use your paid sick time (might as well get paid!) and then apply for FMLA status if you work for a large enough company. It is always better to let your employer know why you need the time off and make a record in case of the need to apply for disability or to take legal action in the future.

Some employers are suspicious of intermittent FMLA leave. While they will grant the status for fear of lawsuits and EEOC intervention, they will oversee it rigorously. FMLA Online, an HR blog, cautions employers that there is "rampant intermittent FMLA abuse," people who are trying to use FMLA status to beat the system at their employer's expense, citing for example:

Stories like this: A nurse who gets migraines and needs time off on Fridays, Mondays and the day before or after a legal holiday.

FmlaOnline.com, "FMLA Intermittent Leave: Don't Let Employees Beat the System".

I share this not to scare you out of applying for the status, but to prepare you that it may not be easy. There probably are people who abuse the system. There are also many misconceptions about Migraine and chronic illness. You may face all of those when you apply.

You may need to educate your employer about Migraine disease or your other chronic condition. Some employers will be more or less compassionate and enlightened than others. Their bottom line will always be the bottom line - what do you bring to the company, what do you contribute. They will want to comply with the law, they may want to help you as well, but their first concern will be the integrity of their organization. Try to give them as much information as you can, and to show your concern for the job and the organization, and it may make your way easier.

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

Homemade Oversite

1 | 2

Comments (36) | Add comment

snoopy_4

6/11/09 2:41pm

i have fmla for my migraines. i have 12 weeks and it is unpaid. the way my work computes it is 12 weeks at 40 hour week gives you 480 hours. its renewed yearly with a 5 page document that your doctor fills out and then is usually approved. you use up your single vacation days and your reg. vacation days except for one week that they wont take.

its a really good way for people who have migraines or other illnesses to leave work then to work when you are sick.

ms.kittywhiskers

6/11/09 10:35pm

I was on FMLA with my last employer . My job was a base plus comission based job.After I was granted FMLA leave, my employer wouldn't lower my sales goales to reflect the hours I had to call in and miss workfor my Migraine/FMLA absences.Since my sales goals were the same as everyone else,It was getting impossible to make my sales goals each month. The stress that not making my goals and being continually repromanded for that was causing me a great deal of stress(and more Migraines!), as you could probably imagine. With the economy as it is now,where I worked was loosing sales and the Company was worried about Corporate sales. I could tell that they didn't like me having to miss work sometimes(even though they didn't outright say it), by constantly writing me up for sales goals not met I could tell that they were trying to get aroung the FMLA status to get rid of me . They constantly were trying to tell me they were calculating my goals minus the FMLA hours(not true!). Well long story short they ended up Laying me off from my job,saying it was because of missed sales goals. A lot of my fellow employees were not making their sales goals and being written up,but they didn't get layed off like I did. I absolutely NEVER abused my FMLA status,only calling in for Migraines for FMLA. I even came to work with colds/flu etc., because I didn't want to be absent any more days than my Migraine took for FMLA days.

I think FMLA is a good program,if you aren't in a comission/sales goal based job. I really think they didn't like me having to use FMLA and tried to think of a way to get rid of me because I couldn't achieve as many hours worked to make bigger sales each month.

Anonymous

6/12/09 9:06am

I am one of the lucky migraine suffers that has been approved for IFMLA. However, if you are going to use this service, you need to be aware of misunderstandings in the work place.While you can't be "punished" for taking FMLA, if you have a boss like mine, you may find yourself hitting brick walls in other areas of your professional life. Most people still don't understand about migraines. I even printed some info from this website to try and bridge the misunderstanding and she(boss) could really have cared less. The underline current amoung myself, my manager and supervisor is one of strain. Just be sure to get documentation each time you are out know what your rights are concerning how you must be treating equally with your co-workers. It's a battle we don't need, but for some of us, it is what it is.

Good Luck,

Deb

Katinthecorner

6/15/09 1:15pm

I have had intermittant FMLA for almost two years now. I just want to add a little piece of non-legal advice Megs gave me when I was having issues with my boss.

When I first had FMLA, my boss was down right rude sometimes about my taking time off, so Megs recommended when I needed sick to time to specifically say "I need to take some of my FMLA leave today because I have a migraine". It can be helpful to remind them that you are legally entitled when the cop an attitude with you.

As an aside, I sat my boss down and explained my attacks to her and she was very receptive to a little education. I was very lucky.

Megan Oltman

6/15/09 2:48pm

Kat I'm so glad that was a helpful suggestion! As the range of comments show, it's better to have FMLA than not to have it, but it won't solve all your problems or instantly turn your supervisors sensitive and understanding if they aren't that way already.Kittywhiskers sorry to hear about your difficulties with the sales commissions. That certainly sounds like a gray area, where they could say they are just holding you to the same standard as everyone else, though the standard might be impossible to meet if you have to take leave.

Document everything you can and be specific and clear about the leave you are taking, as Kat and Deb suggest. Knowing that we could sue if we are fired unfairly is small comfort, as I'm sure most of us would rather have the job!

- Megan

guest123

7/30/10 3:28pm

Just a comment from a non migraine co-worker. It is really hard to be supportive when migraine suffers are off on a regular basis (espcially the Friday/Monday off days). Remember your co-workers have to "pick up the slack" when you are out - generally employers don't have someone on call to fill in while you are out. You need to see it from our side as well. If you are going to need 12 out of 52 weeks (plus your vacation time, plus your paid sick days), maybe disability is an option. Sorry - and I have a spouse that is on permanent disability due to the fact they cannot be at work on a full time basis, so I know how difficult it can be.

2/28/11 6:50am

you dont understand. We know that others have to pick up the slack. That is why at least I feel guilty when I'm not at work. As for disability, I get that already through prior service from the military, I also have FMLA and while that protects my job taking (LWOP) Leave without Pay hurts. The people where I work are understanding but after so many days of not going to work I feel like a failure!

hateheadaches1

8/ 3/11 3:28pm

People who dont get migraines have no idea how much intractable pain we suffer. They just think it is a headache, get over it. I heard a good analogy for it, compaing a migraine to a headache is like comparing child birth to menstrual cramps. And you know what probably makes us even worse, is that we do feel guilty about missing work and most of us cant afford to miss work. Believe me no one makes up my work when I am gone. It is still here waiting for me. You seem like a very insensitive person. But then again, there is always Karma.

JulieL

6/18/09 6:16pm

Thank you for your article. I ended up quitting my job because I was missing so many days from migraines. I did not work there long enough to get FMLA and at my last job I was fired from missing too much time for migraines. Is there any help for those of us who are not eligible for FMLA but trying to get back to work once the migraines are under control? I'm going to try to get SS disability but I've heard that it's very hard to get at all let alone for something that can't be "proven". Any help would be appreciated! Thanks!

Megan Oltman

6/19/09 3:26pm

Hi Julie -

You can get disability due to Migraines though it can be a long process. I'm going to point you to a question I answered about it here just the other day, which has some tips and links to get you started: http://www.healthcentral.com/migraine/c/question/385420/74602

I will be doing another sharepost on the disability topic sometime soon!

- Megan

mcmurraychick

6/30/09 1:31pm

hte time i miss for migraines may be covered, but the employer will still find a way to get you in trouble for time missed.

my paperwork was filed. and aside from time missed with migraines i can tell you that i have missed less than 5 days in 2 years from other causes. yet i still got in trouble, because while the law says they have to excuse those days, if you get the flu or your kid gets sick, it sin't and the days you miss with migraine are still counted against you.

my job had misplaced my FMLA paperwork 3 times ( and yes i keep copies) and i must produce a doctors note every time i have to miss a day, which gets very expensive, and means that i must go to the doctor or ER even if the meds i take at home help.

my job also will not make concessions that are required under the ADA, i was told to suck it up and deal ( not those exacat words, but that's what it meant)

i have been trying for several months to get moved to first or second shift, i currently work third. i have been told by several managers that it will not happen until i no longer have migraines. no matter how many times they are told, and my doctor has even told them, there is no cure, only control, nothing changes.

so i have goven up and am currently looking for another job. the truly sad fact is if you knew where i work, you jaw would drop. as they promote themselves as being so " family friendly" and procliam to help the disabled. what a joke!

Megan Oltman

6/30/09 2:25pm

McMurray Chick - Nobobdy wants to hear that they may have to file a lawsuit (I've never really met someone who was thrilled at doing that) but that's what the EEOC and the laws are there for. When your employer is blatantly violating the laws that are there to protect you, it is time to consult an attorney. While people may feel they can't afford it, sometimes just a letter, or a few calls, from the attorney can make a difference and it costs you a lot less than everything involved in finding a new job. You can contacxt EEOC and they may have suggestions for you as to how to proceed.

We have a lot to deal with as Migraineurs and we don't want to have to deal with what it takes to enforce our rights as well, but there are remedies available to you! If the EEOC gets involved, a company may actually change its policies, instead of just trying to sound good in PR!

- Megan

mcmurraychick

6/30/09 5:10pm

unfirtunatly i have yet to find an attorney willing to take on my employer. even the big law firms are scared of this one.

it is also a known fact that anyone who dares try to enforce their rights gets fired. i know this personally as i have seen it happen with 2 workers comp claims in the 2 years i have worked there. and in one case all the person did was have an attorney look ovr the settlement offer.

bad as it is, until i find something else i have to keep my mouth shut and deal.

like today for example. my head is throbbing, and the meds aren't doing it, but i have already been told that it doesn't matter if i am dying, i'd better be there. so i will go, and most likely have to go to the ER from work. and then good luck getting back home, as i live 30 minutes away, and can't drive for 8 hours after taking meds.

JustSayIn

7/ 7/10 11:33am

It would seem you would almost be better of being fired and then file your lawsuit.

Jackson v. Jernberg Industries, Inc., 2010 WL 60921 (N.D. Ill. 2010), the district judge entered judgment against Jernberg Industries on a former employee's FMLA interference claim, in spite of evidence that the plaintiff deliberately violated his employer's attendance policy and caused his own discharge. The court held that Jernberg Industries' attendance policy illegally "interfered" with the plaintiff's exercise of FMLA leave by requiring him to produce a doctor's note following each absence when his physician had already provided a single certification supporting the need for "intermittent FMLA leave" for one year.

dolphinkist

9/ 3/10 5:30pm

Right. An employer cannot require you to have a doctor's note for each intemittent absence if you have an FMLA in place and non-FMLA employees don't have to. Your FMLA IS your doctor's note.

However, if you do go to the doctor, it doesn't hurt to bring in a note just for them to put in the file. They can't ask for it, but it doesn't hurt.

You may, though, have to comply with company policy on "fit-for-duty" if you FMLA certification doesn't explain or outline your absences well enough, but this again would only be following the company policy that everyone else has to follow, too. They can ask for a recertification even, if a longer absence is outside of the parameters of your FMLA certification.

Your former employer sounds like a jerk (and they may not have been very well educated in FMLA...that happens a lot in the work place since so many aren't willing to send their staff to legal training to keep up on laws) and I hope you find a better company. But know that even with a company keeping with all the rules of FMLA might seem like they're being overbearing with documentation (like requiring recertification every 30 days). That doesn't mean they're out to get you, but that they are trying to protect themselves by doing everything uniform. If they do have someone abusing the system (it does happen...there's always those that ruin it for the rest of us), that's the only thing that will protect them from that abusing employee (oddly enough, abusing employees often try to sue) claiming unfair treatment because they didn't make you (the non-abuser) jump through all the FMLA hoops. So all we can do is make sure we're getting the documentation to them as needed and keep copies of every piece of communication so that we're protected, too.

Denise Garrett

8/11/09 11:55am

I used this for different years of my career, while I switched or transferred positions, I would have to wait 12 months in order to get FMLA to be in affect for me. As I was reading these sharepost, I realized, that I was not alone in being "punished," or frowned upon for missing work. I had to stop working 2 years ago, because, I just couldn't go to work, and stay there. When I was there, I began getting slower in my duties. But, .....I have to say that my boss gave me more and more to do, knowing, I wouldn't be able to do it working the way I was. I went down to 3 days a week, and she was livid, that I had talked to her and my boss about this. But, she kept telling me they didn't know and wouldn't give me an answer about it. She was so "wishy-washy", and I even told her that. So, it is good to have this available to us, but, remember that it's no guarantee that everything will be fine with our jobs.

Denise

Lorraine

8/30/09 5:01pm

I finally got granted Intermittent FMLA. It took almost 2 years of fighting back and forth with human resources to finally get granted. Everytime I turned in paperwork they would come up with more questions to ask. My problem is.... When you originally get the paperwork; they need to also give you the additional questions that they want answered. Not just the goverment standard forms. They don't realize that everytime they go back and forth with paperwork. It costs you money. The doctor's office charges. I think the whole theory behind it is..... That the more and more questions they ask; you will give up.

So those of you out there that are fighting to get it; keep pressing on and don't let them make you soo fustrated that you give up!!! It is your legal right to have this.

10/ 1/09 8:45am

Hi. I just read the above statements about FMLA and intermittent time off from migraines. I have the opposite problem and need some advice.

I usually take between 5 and 10 days off per year with migraines. I used the companies sick time for this. I do not have any more sick time, but I do have 40 hours in vacation time. I am on the FMLA with documentation.

They say I can't use my vacation days when I have a migraine and I don't have any sick time left. I saved 5 of my vacation days in case I do have a migraine I would be covered for that particular day.

Can they deny me vacation time for a migraine while on the FMLA and having no company sick time left?

Megan Oltman

10/ 1/09 11:38am

Al - This is straight from the Department of Labor's FMLA FAQ sheet:

"Q. Can I use my paid leave as FMLA leave?
A. Under the regulations, an employee may choose to substitute accrued paid leave for unpaid FMLA leave if the employee complies with the terms and conditions of the employer's applicable paid leave policy. The regulations also clarify that substituting paid leave for unpaid FMLA leave means that the two types of leave run concurrently, with the employee receiving pay pursuant to the paid leave policy and receiving protection for the leave under the FMLA."

I hope I'm understanding your question right, but it sounds to me like if you are entitled to the vacation time, they can't stop you from using the vacation time as FMLA leave.

I suggest you print out the DOL FAQ sheet (which I linked above) and point it out to them.

- Megan

10/ 1/09 6:27pm

Thank you .. I will check that out. I talked with someone regarding FMLA in my area and they say they don't have to let you take it depending on their particular policy. So I back to square one where it's a fine line.

2/28/11 6:59am

Hello,

You should re-read your FMLA packet to make sure what you are entitled to because they are different based on the limitations set forth between you and your doctor.

If you have FMLA, technically you should be able to use sick,vacation or Lwop to cover whatever time you miss. Thats the point of having it!

The employer is not allowed to force you to use sick time only, at least from my understanding.

Curt63

10/28/09 10:35pm

I am 46 years-old, and I've been taking migraine meds for the past ten years due to the fact that I get about three migraines a month.

Over the years, I have been able to notice a few triggers that seem to set off my migraines--namely being overly stressed or stuffing some feelings.

I work for the school district for several years; however, at the beginning of one year, got two new bosses that did lots of micromanaging--I tried to go with the flow and totally comply, but then I notice that instead of getting three migraines a month I was getting three a week and the other two days I'd have a head ache and then my neck started hurting from being stiff. I told my wife this, she said, quit your job your health is most important. The problem wat that I loved my job, so not that easy for me. I ended up going to the doctor and asked if he could give me anytime off because I was seriously concerned about the increase of migraines, headaches and soar neck. The Doctor gave me five days off. I notified supervisors that i had a medical note and that I would be taking five days off starting five days later. There was no challenged to this but when I got back I ended up getting fired. I left the state i was in for three days and because of that the school district said i was dishonest and fired for my dishonesty. I did greive it but to no avail. This happened in 2006. I am wondering if there is a statue of limitations for this because I feel I was wronged an would go to court in a minute if I still could.

Thank you, CT

Megan Oltman

10/29/09 7:52pm

Hi Curt - The FMLA provides that you can file a complaint with the Department of Labor or file a private lawsuit, and:

"(b) If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful." 29 CFR 825.400

You should consult an employment attorney. It would be worth seeing if you have a claim under both FMLA and ADA (The Americans with Disabilities Act). For more information on filing a claim under FMLA, go to: and for more information about filing a claim under the ADA, go to: Government ADA Infoline.

Good luck!

- Megan

curt63

10/29/09 11:30pm

Thank you for your response. I am afraid that my time has expired. If I recall right I was terminated March 2006, yet I think it may have been spring 2007 before school union dropped me. I guess I'll have to check to make sure.

Again Thank you so much!

Megan Oltman

10/30/09 9:34am

Curt I'd still suggest you talk to an employment lawyer. They can look at the specific facts of your case and see if there's a way to make a claim. I am not providing you with legal advice but just some general idea of what the statute says. There may be exceptions or helpful case law that I am not aware of. Good luck.

7/23/10 10:38am

I am pretty lucky. I've been working in the same department for 4 years now. While my previous boss was less than happy with my frequent migraine absences, our company has a generous sick leave policy, and we get one day per month. I was very careful not to exceed that day per month, even if it meant that I spent a few other days a month unable to function at my desk or most of the day puking in the bathroom. The Human Resources liason for the department also happened to be a migraine sufferer and noticed my behavior. She encouraged me to apply for FMLA as soon as I was eligible. I did, and after a year of going back and forth with Employee Relations and my neurologist, I was approved.

A year later I left my job with the old boss and began working directly for the HR liason. She's been a terrific boss in many ways, but she's way more reasonable about my migraines. My company counts FMLA hourly, so even though I don't count sick leave unless I'm out for half a day, if I'm an hour late because I had to wait for my Relpax to kick in one morning, that counts against my FMLA. I take my sick leave first, and after that, it starts counting against my vacation. However, since I've changed jobs, and started with a new neurologist, I haven't had to use too many vacation days for FMLA. If anything does happen, though, and my migraines do get worse again, my employer will have my migraine history on record. I think that history will be very important if I ever need to apply for disability.

Kim

8/29/10 12:12pm

What do I do if I still have plenty of PTO but my employer still is trying to get rid of me? I miss 2-3 days a month for only migraines. I don't take vacations like my co-workers. I've worked at the same place for 10+ years. i love my job and my patients love ME. We've been under new ownership in the last 2-3 years. I've had migraines for 25 years (since I was 15). My employer tells me what a great job I do and that I'm a valuble employee. Do I still apply to ifmla if I still have PTO? PLEASE HELP!

lynchic

8/29/10 2:39pm

Kim, yes you want to apply for FMLA. An employer is under no requirement to keep you if you take MORE than your guarunteed FMLA time per year, but by having it filled out it supports your reasoning for being off when you are. It's legal protection so your employer can't complain you are taking excessive time off.

MigrainePuppet

8/29/10 3:07pm

Kim - my employer is also moving toward the number of occurrences we are out where it doesn't matter how much time we have left to take. They are looking at last minute call outs that are unexcused where it could be we come to work late, leave early or are out for the whole day. With Migraines, we can't plan when we are going to have an attack. This is why I put in my ifmla application.

Kim

8/29/10 5:30pm

thanks so much. its good to know that im not the only one out there that is going thru this. take care of you

Megan Oltman

9/ 1/10 7:34pm

Good responses there! Yes, it is better to have the FMLA approved because then you have the justification for the absences. But remember that your employer can require you to burn through paid time off before using the FMLA time. Not all do, but they are entitled to.

lynchic

9/ 1/10 8:42pm

actually FMLA and paid leave overlap... FMLA means by law you are allowed up to 12 weeks of leave within a years time if approved for a valid medical reason (or to care for family) without your employer being able to fire you (this is not applicable in small businesses). After you take 12 weeks total (is does NOT have to be concurrent) your employer has no obligation to keep you employed. During your leave, your employer can require you to use up all of your paid sick and then paid vacation time before allowing time off without pay, however the FMLA timeclock starts the first day you are out on approved leave. Basically, FMLA protects your job.. accrued paid leave just means you will still get a salary for at least some of the days off.

dolphinkist

9/ 3/10 5:43pm

YES! Apply for FMLA.

There was another article on here that was basically incorrect in suggesting that you use PTO first, then apply for FMLA.

It depends on your company's policy, but in most cases, it is better (and necessary) to apply for FMLA as that will be the only thing to protect your job.

Most companies have some sort of vacation or PTO that you can use to cover illness or whatever. BUT most of those same companies also have an attendence policy that requires absences to be pre-planned or it's considered an absence (or tardy or early leave). Even if an employer allows you to use vacation, this does not mean that it keeps you from being written up for attendance. So, it's very likely that your absences, even though you're using PTO for them, are making black marks on your attendence record. You will have to check your company policy.

Some companies don't let you use PTO for FMLA, so if that's the case, you would have to weigh the loss of pay against the job protection FMLA affords. However, this isn't an issue in too many companies because generally they require you to take your PTO for FMLA (or sick or whatever paid time is available) because it is more beneficial to them to have you use it up then to have 4 weeks of IFMLA and then still have 2 weeks of vacation. The draw back to an employee working for this type of company is that they may never get to take a proper vacation; the plus side being that they don't lose money every time they have to be out.

Good luck!

dolphinkist

9/ 3/10 5:13pm

The example used to almost "discredit" the FMLA site helping employers is insanely taken out of context. The point of that example isn't that the nurse has migraines, but that the nurse has something that isn't visibly verifiable AND has a pattern of having to be off because of her condition at the "convenient" times when it gives them long weekends or extra time off around the holiday. This is the same type of pattern some attendance abusers use around holidays or weekends to get more time off that they couldn't otherwise get off, so it's natural to be suspect of it. How is it not suspicious for anyone to "have" to take off the day before and after every holiday or every Friday because of intermittent leave?

A recertification and explanation can remedy this suspicion easily enough if it's actually legitimate. It may even end up helping the employee because (in the case of migraines...which I have, by the way) the employer noting a pattern that needs recertified can open a dialogue between the employee and doctor about why they're more frequent then (maybe I've been going out with friend on Thursdays and having a glass of red wine, or listening to loud music, that might actually be triggering my migraines, or maybe it's that I need more sleep than most but I don't know that but with this pattern my doctor and I can learn that if I don't sleep at least 10 hours a night, I get a migraine by the end of the week).

"Probably" some abusers of FMLA? Of course there are! This article does the migraine sufferer a disservice by making light of FMLA abuse and making it sound rare. It really isn't that rare. Sure, it's only a few bad apples, but they're everywhere, and most larger employers (and some smaller ones) have had the experience of FMLA abuse. What I need to hear as a migraine sufferer is that there ARE FMLA abusers out there and that is why my employer may be suspicious of my claim. It ISN'T that they're suspicious of me and think I'm a bad employee, necessarily. There are plenty of ways to make an employer realize I'm not an abuser, but if I think the employer's being unreasonable then I'll get defensive and come across poorly, not increasing my employer's confidence in my FMLA claims. Yes, I need to make sure I'm protecting myself and my employer isn't going to step on my rights or treat me differently because of my FMLA, but I have to know where they're really coming from to help come to an understanding. It doesn't have to be me against them or them against me.

dolphinkist

9/ 3/10 5:51pm

Oops.

I don't want it to sound like all employers are good guys. There are definitely bad ones out there!

We always have to keep documentation and make sure we're doing the right thing as well as the company. Gotta protect yourself. Just remember that a good employer is trying to do the same thing.

natalie1100

9/19/10 11:03pm

FMLA is great if you qualify but what can be done for those who don't qualify? I am a nurse and I work weekend option. I am considered full time but I do not work enough hours to qualify. The hospital I work for suggested I work a 200 more hours and I would qualify. That sounds all fine and great except for the fact that I have migraines and I can't take off again untill december. So if I schedule my self for more hours and call in on any of those days I will loose incentive pay (which is thousands) over the course of a month. I don't know what to do. I love my job but I am only allowed 4 call-ins in a year. Does anyone have any suggestions??

When Migraines Make You Miss Work: Intermittent Leave under the Family Medical Leave Act

Ask a Question