Intermittent FMLA: Protection for the Employed Chronic Migraine Sufferer

November 6, 2017
Jim Carleton

The subject of this month's newsletter began with a conversation between myself and a Human Resources Specialist around coping with an employee's pneumonia, her chronic absences, and whether or not to place her on Intermittent FMLA.  During this conversation the HR Specialist likened someone with migraine, having to take large amounts of time off, to our present case of extraordinary pneumonia absences.  It occurred to me that this legal right - Intermittent FMLA - may not be well understood in the migraine community. This is probably most relevant for the chronic migraine sufferer who is struggling between their illness and their job.

First off, what is the FMLA? 

The  Family and Medical Leave Act (FMLA) was signed into law on August 5, 1993 by President Bill Clinton. The FMLA is a labor law requiring larger employers to provide employees unpaid leave to deal with  serious health conditions or to allow them to care for a sick family member, a newborn or an adopted child. Most states offer 12 weeks per year. Some states, like Rhode Island, offer 13 weeks of leave.

In order to be eligible to take leave under the FMLA, an employee must (1) work for a covered employer, (2) work 1,250 hours during the 12 months prior to the start of leave, (3) work at a location with 50 or more employees, or within 75 miles of it, and (4) have worked for the employer for 12 months, or if sporadic employment a look back of 7 years may apply.

Now let's focus on Intermittent FMLA:

Intermittent  FMLA is leave taken in separate units of time for a single serious health condition or injury. A reduced leave schedule drops an employee's usual working hours per workweek or workday. It is a temporary change in the employee's schedule, normally from full-time to part-time. It can be utilized on short notice. The critical term here is serious health condition. I would argue that Chronic Migraine (15+ headache days per month), or High Frequency Episodic Migraines (10-14 headache days per month) qualify as serious health conditions. It should not prove difficult to produce reliable medical evidence to support your claim.

In summary, you can apply for Intermittent FMLA if you can answer 'yes' to these 5 questions:

  1. You work for a covered employer
  2. You have worked 1250 hours during the last 12 months
  3. Your work site has 50+ employees  or you are located within 75 miles of the site
  4. You have worked for this employer for 12 months (7 year look back may apply)
  5. You can demonstrate a serious health condition (CM)

 

People with Chronic Migraine may have further rights to explore under the Americans with Disabilities Act. This produces an interesting crosswalk between FMLA and ADA. The two can actually complement each other.

Perhaps you can request reasonable accommodations from your employer that could lessen the need to take time out. In short, reduce the triggers, and hopefully reduce the number of migraines. The ADA itself was covered in a previous newsletter, however, the reasonable accommodations section relates very well to this topic.  The  accommodations most listed are Stress, Lighting, Noise, Fragrance, Posture, and Working from Home. A work/home life balance between you and your employer may need to be struck, with some give on both sides of the equation.

For further reading on Intermittent FMLA explore the following links:

FAQ from the Department of Labor including Intermittent FMLA 

Intermittent FMLA Basic Concepts

Know your rights and exercise them!