Bringing it All Together – Can You Use FMLA and ADA at the same time?

Megan Oltman Community Member June 22, 2009
  • workplaceHow do you work with Migraines? Migraine disease is recognized by the World Health Organization as one of top 20 most disabling conditions worldwide, and this is no surprise to any of us who have tried to function during a severe Migraine attack. It is possible to receive disability status if your Migraines are frequent and severe enough, and I will be writing more about that soon. For most of us, disability will not be the best option - for a number of reasons, we will need to try our best to stay employed.


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


    There is no perfect answer, but there are several laws that protect you here in the U.S. I've posted several articles lately about your rights: to be free from workplace discrimination for having Migraines and to receive accommodation to make it possible to work with Migraines (under the ADA) Working with Migraines: Rights under the Americans with Disabilities Act, and to receive unpaid time off when you need it due to your Migraines (under the FMLA) When Migraines Make You Miss Work: Intermittent Leave under the Family Medical Leave Act.


    Some months ago we had a question asked here on My Migraine Connection where a member's employer was trying to get her to trade off her FMLA leave for accommodations under the ADA. While dealing with these laws may be a Human Resources challenge for employers, they need to understand that the two laws are not mutually exclusive - employees don't have to choose to use one or the other. You can exercise your rights under both.


    The member had been using intermittent FMLA leave when needed for a severe Migraine. She experienced a change in her Migraine pattern (as often happens) and the Migraines became more frequent. At around the same time her employer transferred her to a location with more light and noise than where she had previously worked. Her doctor wrote a letter to her employer requesting a transfer back to the original location as an accommodation, informing them that the new location would trigger more Migraines and cause her to miss more work. The employer responded that they would make the accommodation if she gave up her FMLA status.


    The fast answer to her question was an unequivocal "No, they are not allowed to do that!" The ADA requires that employers make "reasonable accommodations" to make it possible for their otherwise qualified employees with a known disability to perform their job functions. The employer was well aware of her disability, and already had a letter from her doctor about the effect of the work environment on her Migraines. For a Migraineur, reasonable accommodations under the ADA could include adjustments to the lighting, and sound in the work area, assigning a better shift time, or rearranging work schedules in a way to make it less likely to trigger Migraines, among other things. The employer is not required to agree to a particular accommodation, but must propose an alternative.


  • However, it is unlawful for any employer to interfere with the exercise of any right provided by FMLA. To comply with ADA, her employer needed to make these accommodations for her whether or not she had FMLA status. To comply with FMLA, her employer can require re-certification by a doctor of her need for the status, but cannot ask her to give up the status as a bargaining chip to get other rights. That would be like saying "oops, my doctor is wrong, I'm cured!" which would make the ability to get accommodations under ADA highly questionable!


    Remember that ADA does not require your employer to give you any extra time off due to your Migraines. If you give up your FMLA status, "reasonable accommodation" does not have to include giving you unpaid time off. The idea of "reasonable accommodation" is that with the accommodations given, you are able to perform the functions of your job, the same as other employees, with the same allowed time off as other employees.

    It's best if we look at these laws as tools to help us stay employed. What accommodations at work will make it possible for me to perform my job without triggering so many Migraines that I am unable to work? Do I need additional time off, above my paid vacation and sick leave time, so that I can care for myself when I have a Migraine, recover, and get back to work?


    The idea of both laws is to level the playing field - with ADA, to enable you to keep working with accommodations the same as someone without your disability, with FMLA to enable you to work during the time you are at work, the same as anyone else. Your employer is going to focus on their bottom line - getting the work done in the organization. Dealing with ADA and FMLA presents them with a challenge, but you need to make clear that you are just trying to make it possible to keep working, and doing the best job you possibly can.


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


    © Megan Oltman

    Last updated June 19, 209


10 Comments
  • JKM
    JKM
    Jul. 15, 2010

    I guess I am facing the reality that I may be turned down for my long term disability through my .company.  If that happens, I will have no income while I wait on finding out if my social security goes through.   I see their physician next week, is anyone else as frightened as I am about all this.  I am my sole support, and I don't have...

    RHMLucky777

    Read More

    I guess I am facing the reality that I may be turned down for my long term disability through my .company.  If that happens, I will have no income while I wait on finding out if my social security goes through.   I see their physician next week, is anyone else as frightened as I am about all this.  I am my sole support, and I don't have a clue how I am going to make ends meet.  I am having daily migraines, I throw up everday all day.   I live in a dark, quiet room.   I am on preventatives, I am Hypertensive, I have syncopal episodes with my migraines,  I don't drive but on a rare occasion, because I don't feel it is safe.   I am a critical care nurse.   I don't think straight, I'm forgetful, my vision blurs, I have numbness and tingling in my right hand and arm with my migraines.   I am panicking,  any suggestions or help.

  • Lifetime Sufferer
    Mar. 04, 2010

    I have suffered from migraines since I was...well I remember having them in 1st grade.  All of my employers up until now have been very understanding as I am an incredibly hard worker and do my absolute best to prevent my suffering from interfering with my job performance.  However, I feel this has all changed about a month ago when I was called into...

    RHMLucky777

    Read More

    I have suffered from migraines since I was...well I remember having them in 1st grade.  All of my employers up until now have been very understanding as I am an incredibly hard worker and do my absolute best to prevent my suffering from interfering with my job performance.  However, I feel this has all changed about a month ago when I was called into my supervisor's office and, basically, given a verbal reprimand because I appeared lethargic and inattentive at a regional meeting...I had a migraine!!!!!!! and thought I was doing the right thing by coming to work and demonstrating my dedication to the job and accountability for my part in the meeting.  I have worked for this company for over four years and have made no secret of my migraines.  I was told that if I continued to appear inattentive, that I would be publicly called out in the future.  I was absolutely appalled!!!  I shared my feelings with a friend and he recommended a vindictive course of action...calling in sick at the slightest hint of a headache, but that's not in my nature.  Then, last week, my company sent all their supervisors and leadership staff to an HR meeting and they mentioned migraines were a protected condition.  OMG, the feeling of relief was indescribable.  I left work early today because of a migraine attack and just woke-up after hours of medication mixed with sickness.  I finally feel comfortable taking sick time for days like today.  Please, tell me what steps are best to initially take?  I have a dr appt later this month, is it best to first ask him to write me a letter for my employer documenting a diagnosis of migraines or should I have a professional conversation with my employer about my condition?

     

    Thanks,

    Heather

     

    • Megan Oltman
      Mar. 04, 2010

      Hi Heather -

       

      There isn't any specific right way to do this. If you are asking for FMLA leave, then you have to walk in with documentation. If you're just informing them of your condition and that you may need some accommodations, it's up to you. It will certianly make your case more strongly if you have a doctor's letter. I certainly think that asking...

      RHMLucky777

      Read More

      Hi Heather -

       

      There isn't any specific right way to do this. If you are asking for FMLA leave, then you have to walk in with documentation. If you're just informing them of your condition and that you may need some accommodations, it's up to you. It will certianly make your case more strongly if you have a doctor's letter. I certainly think that asking for "not to be called out for appearing inattentive" would be a small accommodation and one they ought to grant. It sounds like some explanation from you of what your Migraines are like and how they affect you would be helpful, and I would strike while the iron is hot - do it right away since they just mentioned Migraine is a protected condition.

       

      - Megan

    • JKM
      JKM
      Mar. 24, 2010

      I'm so happy that you are finally taking care of yourself.   I have had FMLA for years, but the last few years my migraines have become almost daily and are severe.  I am on my last week of  FMLA now and have been on short term disability since the last week of January.   I have had MRI's, CT scans, xrays, I also have HTN that...

      RHMLucky777

      Read More

      I'm so happy that you are finally taking care of yourself.   I have had FMLA for years, but the last few years my migraines have become almost daily and are severe.  I am on my last week of  FMLA now and have been on short term disability since the last week of January.   I have had MRI's, CT scans, xrays, I also have HTN that has been difficult to control, now seeing a Hypertension specialist.  My family doctor and I talked on Monday about where I was going to turn to next, after reviewing my chart and medications I am on(nearly maxed out on the doses of multiple antihypertensives) he told me to apply for long term disability.  This is something I am going to do.  My job is a critical care RN, I cannot safely make judgements while having nearly daily migraines that I cannot treat at work.  I'm at my wits end....

  • Lisa
    Jul. 06, 2009

    I believe the situation that you are referring to in this article is mine.  The struggles over the past few years with my work and migraines have been exhausting. And this for a job I absolutely LOVE. I finally feel like someone is listening!!  Thank you so much. I wish I could have found out more about ADA when they tried transferring me. I would...

    RHMLucky777

    Read More

    I believe the situation that you are referring to in this article is mine.  The struggles over the past few years with my work and migraines have been exhausting. And this for a job I absolutely LOVE. I finally feel like someone is listening!!  Thank you so much. I wish I could have found out more about ADA when they tried transferring me. I would have done things different and I would not have used up my FMLA. Anyway, thank you again and keep the information coming. I believe that helps a deal. It gives me hope in my own situation to know that what I was fighting for and am still fighting for is attainable.

     

    Lisa

    • Anonymous
      Anonymous
      Sep. 21, 2009

      SO ARE YOU  SAYING IF YOU NOTIFY EMPLOYER IT IS A DISABILITY ONE DOES NOT HAVE TO SUCK UP VAC, SICK, COMP,FMLA AND FEAR ANOTHER TERMINTION AND GRIEVANCE CASE? FOR ACTUALY TWO DISABILITIES.

    • Megan Oltman
      Sep. 21, 2009

      Dear Anonymous -

       

      It sounds like you've been down this road before - sorry to hear it! Unfortunately with FMLA your employer can require you to use up paid leave before taking FMLA leave.  The Department of Labor's FMLA FAQ's give a little more information on this.

       

      Ont he other hand with ADA, if you notify your employer of your disabilities...

      RHMLucky777

      Read More

      Dear Anonymous -

       

      It sounds like you've been down this road before - sorry to hear it! Unfortunately with FMLA your employer can require you to use up paid leave before taking FMLA leave.  The Department of Labor's FMLA FAQ's give a little more information on this.

       

      Ont he other hand with ADA, if you notify your employer of your disabilities and ask for  accommodations to help you perform your job, and if they can grant the accommodations without harming the organization, they do have to accommodate you. The catch, though, is that they aren't required to give time off as an accommodation. This sharepost on Rights under the ADA might help clear up what they're required to do.

       

      Good luck to you!

       

      - Megan

  • Anonymous
    Elizabeth Wakef...
    Jun. 24, 2009

    I have stated in my own blog that my work place is very accomodating to me and I am very lucky and know it because I've heard these horror stories before.  Before my migraines got so severe to be daily, I had open conversations with work about my migraines as a disorder.  I also am a valued employee and approached the conversation from a business...

    RHMLucky777

    Read More

    I have stated in my own blog that my work place is very accomodating to me and I am very lucky and know it because I've heard these horror stories before.  Before my migraines got so severe to be daily, I had open conversations with work about my migraines as a disorder.  I also am a valued employee and approached the conversation from a business perspective rather than emotional or something I needed.  I talked about how they were most able to get the most value out of me.  My doctor wrote a letter as well indicating what hours I could work, etc.  My work has allowed me good accomodations - an inside office where I can leave the lights off and I can where my sunglasses if I go elsewhere.  And now more recently have allowed me to work from home.  I showed them that my productivity increased significantly - with numbers and facts - when I worked from home and then asked to work from home 3 days a week.  The president came back with "work from home all the time and just come in for meetings."  This is because I was able to show them logically and with facts that I was more of an asset to them if they accomodated my migraine disorder than if they didn't.  I didn't approach it from an emotional level describing my pain and how hard it was for me.  I am grateful for my employers' handling of my situation and feel for those that don't have that.

    • Megan Oltman
      Jun. 25, 2009

      That's a great approach, Elizabeth, and a great piece of advice for anyone in a position to follow it. One of the crucial issues will be to decide when to talk about Migraine disease. If you wait until it has already become a severe problem for your job perfomance, it will be hard to keep the emotion out of it and hard to show the kind of positive results from...

      RHMLucky777

      Read More

      That's a great approach, Elizabeth, and a great piece of advice for anyone in a position to follow it. One of the crucial issues will be to decide when to talk about Migraine disease. If you wait until it has already become a severe problem for your job perfomance, it will be hard to keep the emotion out of it and hard to show the kind of positive results from accommodations that you are talking about.

    • Elizabeth Wakefield
      Jun. 25, 2009

      Well, also I'm a CPA so facts and results approach comes more naturally to me.  I have to prepare to be non-emotional for the meetings that we still have while my pain is severe.  I prepare a schedule and an outline of what we are going to discuss and that helps me follow that rather than my emotions.  Plus I see a therapist once a week for dealing...

      RHMLucky777

      Read More

      Well, also I'm a CPA so facts and results approach comes more naturally to me.  I have to prepare to be non-emotional for the meetings that we still have while my pain is severe.  I prepare a schedule and an outline of what we are going to discuss and that helps me follow that rather than my emotions.  Plus I see a therapist once a week for dealing with my chronic pain and I discuss with her how I'm going to approach it and we role-play so I'm prepared to keep emotion out of it.  The first role play I don't do very well, but practicing helps with a professional.  If you don't have that then role play with your friends/family/support group and get their take on how you come across.  I just know the boss cares more about his/her bottom line so you have to come at it from their perspective.  Sad but true.

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