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Migraine Headaches – The bane of FMLA world for Employers

Of all the various “serious health conditions” which are FMLA-qualifying events, the “migraine headache” has employers twisting and turning…trying to figure out how to deal with the ever-increasing numbers of employees allegedly suffering from chronic migraines. Now, before anyone accuses me of being “heartless” or “unsympathetic” (other than a plaintiff’s attorney) to the plight of those truly suffering from this chronic condition, let’s review some facts.  Under current FMLA law, Sections 825.112 spells out exactly what qualifies for FMLA leave, either a solid block of leave or intermittent leave.  FMLA Section 825.113 further defines exactly what constitutes a “serious health condition.”  And, folks, chronic migraine headaches are included and recognized as a “serious health condition” which incapacitizes an individual under FMLA.

And, here’s where it gets even more frustrating for employers.  In accordance with FMLA Section 825.115(f), “Absences attributable to incapacity under FMLA…qualify for FMLA leave even though the employee or covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than 3 consecutive, full calendar days…”  So, how do you spell “migraine”:  FMLA.  And, in fact, we’ve come to the point under FMLA where migraine headaches are practically synonymous with FMLA leave.

How to Control FMLA Employee Abuse – Migraines or Otherwise

Here are a few tips for employers or HR functions to use to control FMLA abuse:

(1)  Insure 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 fixed within a reasonable period of time.

(3)  Get a second opinion.  An employer who has reason to doubt the validiity of a medical certification has the right, and may require the employee to obtain a second medical opinion (cannot use company medical personnel nor anyone affiliated with employer) 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 leave time does NOT need to use any sort of magic language or formally request FMLA leave.  The employee doesn’t even need to say “FMLA”.  If the employee s provides enough information, either verbally or in writing, about his/her serious health condition to inform you that said employee may need FMLA leave, ALWAYS treat that request the same as you would for someone who specifically requests FMLA leave.

Or, if you welcome lawsuits or legal action, then ignore the above “advice.”