Wednesday, October 05, 2005

Family Medical Leave Act

Any of you experienced lawyers out there able to help me clarify something?

My wife has serious, chronic, but undiagnosed migraine headaches. She is finally acceding to my suggestion to see a doctor and get it diagnosed this week.

Last week, she had to leave work on Thursday, and by doctor's orders, was not permitted to return Friday because of a severe, crippling migraine that left her barely able to walk, much less operate a car or a computer. When she finally gave in and asked for help, her employer refused to call an ambulance for her, opting instead to force her to call family members to pick her up.

Now, the employer is writing her up twice, essentially putting her on final probation, due to her absences having exceeded her permitted sick time. Her employer told her first that she can't get FMLA time because she failed to provide advanced notice, which I'm sure isn't true. Then they told her that because she doesn't have a diagnosed migraine condition, she is not eligible, even if she gets such a diagnosis ex post facto.

Does this sound right to you? It seems to me that we would never suggest that a pregnant woman be denied FMLA leave because she was unaware of her pregnancy at the time she experienced severe morning sickness.

Leave me a comment or drop me an e-mail if you have thoughts.

4 Comments:

Blogger Kerrie said...

It's ideal to give leave at least 30 days in advance, but when this isn't possible employers should be notified "as soon as practiable." Here's the link: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.302.htm.

Do you think the unspoken reason is that the HR folks at her job don't think of migraine as a real, incapacitating illness? This is a pretty common belief. The more info you can get from her doctor (ideally a letter describing the severity of her migraines), the easier it will be.

Good luck!

-Kerrie

11:24 AM  
Blogger Matthew said...

Thanks very much, Kerrie! I passed along the request for a letter from the doctor to my wife. I hope it helps.

3:47 PM  
Blogger Me said...

Let me know if you need anything. She can get the absence medically excused. If she qualifies for FMLA leave, then yes, she can take such leave, despite not giving 30 days notice.

And yes, migraines can constitute an FMLA condition, as well as a disability under the ADA. (Also, her migraine condition can qualify for intermittent FMLA leave - maybe she can ask her doctor about that.)

7:47 PM  
Anonymous Anonymous said...

Matt,
Read this today and thought of your post. Here's 2 cases: Hendry v GTE North, Inc., 896 F.Supp. 816 (N.D.Ind. 1995) and Henderson v. Whirlpool Corp. 17 F.Supp.2d 1238 (N.D. Okla. 1998). Also see Ware v. Stahl Specialty Company, 4WH Cas.2d 974(W.D.Mo. 1998) and Vargo-Adams v. United States Postal Service, 992 F.Supp. 939 (N.D.Ohio 1998). HTH

2:35 PM  

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