Migraines! They are the bane of your FMLA world, HR. Amirite?

Bane

Lest anyone consider me a heartless mongrel. (Other than you plaintiff’s lawyers, of course). I understand that many folks suffer from migraine headaches. Really bad, debilitating, serious health condition migraines. I get it. And, I sympathize. I’m sorry.

That said, poll a room of HR professionals. With hella-side eye, they’ll tell you stories of employees — often the ones with performance, attendance, and disciplinary issues — taking intermittent leave under the Family and Medical Leave Act for migraine headaches. The ones that get especially bad on Fridays and Mondays. You know what I’m talking about.

How do you spell migraine? F-M-L-A.

Indeed, we’ve gotten to the point where migraine headaches are practically synonymous with FMLA leave.

Take this recent case for example, in which a Missouri federal court concluded that a woman who had missed work and called in for migraines on at least two of those dates had effectively put her employer on notice that she required FMLA leave. Additionally, because it was fairly common knowledge that the woman had experienced recent migraine episodes, even absences noted in the employer’s sick logs as a “headache” may have been sufficient to trigger the company’s obligation to investigate further as to whether the woman needed FMLA leave.

(Interestingly enough, it wasn’t until the woman had already been fired for too many unexcused absences that she learned from her mom, a manager of human resources for a different company, that her migraines may be covered under the FMLA).

Controlling FMLA abuse – migraines or otherwise.

I’ve got a some tips for you to control FMLA abuse.

  1. Make sure that employees complete an initial FMLA certification. If the employer requests medical certification, the employee must provide a complete and sufficient certification at his/her expense, generally within 15 calendar days after the employer’s request.
  2. Don’t accept incomplete or insufficient certifications. A certification is considered “incomplete” if one or more of the applicable entries on the form have not been completed. A certification is considered “insufficient” if the information provided is vague, unclear, or nonresponsive. In writing, inform the employee what’s deficient, and require that it be fixed.
  3. Get a second opinion. An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second opinion at the employer’s expense.
  4. Recertify. In general, the employer may request the employee to provide a recertification no more often than every 30 days and only in connection with an absence by the employee. However, one exception to the rule is when the employer receives information that causes it to doubt the employee’s stated reason for the absence or the continuing validity of the existing medical certification. Then, the employer can request recertification sooner.

Also, remember that an employee who needs FMLA does not need to use any sort of magic language (e.g., “Hey boss. I need FMLA leave.”). The employee doesn’t even need to say the letters F-M-L-A. If the employee says enough about his/her condition to inform you that said employee may need covered leave, treat that request the same as you would for someone who specifically requests FMLA leave.

Or, if you like lawsuits, don’t.

Image Credit: By Chris Favero (https://www.flickr.com/photos/cfavero/8688777411/) [CC BY-SA 2.0], via Wikimedia Commons
Updated:
  • Flyboy

    The only item I would add to the above…is the employer’s mandatory requirement under Section 825.305(d) “….the employer MUST also advise an employee of the anticipated consequences of an employee’s failure to provide adequate certification. If the employee fails to provide the employer with a complete and sufficient certification, despite the opportunity to cure the certification as provided in paragraph (c) of this section, or fails to provide any certification, the employer may deny the taking of FMLA leave.”