HELP! FMLA ISSUES

lnelson

It's me again with more FMLA questions.

I have not had this type of FMLA situation before so bare with me on this please.

My boss wants to term the guy on FMLA for migraines because the dept he works in is sooo busy and since we received his FMLA paperwork back he has been out a majority of the time. He has not received the approval yet as I was on vacation last week and did not get it to him. But prior to the paperwork being turned in he was pretty much here on regular basis with exception of coming in late. She would like to hire someone for his position what can we do? Are we stuck?
He is calling in stating he has a headache no further details. He calls and leaves messages.
What can I require of him? I will be asking for doctor note as stated in the letter provided to him. Can we have him take the leave at once or are we obligated to intermittent?

So many questions so little time.

Lisa

Brad Forrister

Migraines typically qualify for intermittent leave as a chronic health condition. I wouldn't terminate him. But you can insist on documentation from the doctor, and you can work out what you require in terms of calling in sick.

Also, keep in mind that migraines can also qualify for ADA. It's a case-by-case determination, based on whether the migraines interfere with a major life activity -- or rather, on whether the courts would find the migraines interfere with a major life activity. Courts have ruled both ways.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Don D

Back up x:-) Where does the notion of migraines come from? You said he called in and said he had a headache with no other information. That doesn't equate to migraines. We've been round and round on here about migraines and FMLA and, yes, they do qualify if the condition is medically certified and the person otherwise qualifies. About all you can do if migraines is his stated problem is issue the paperwork, certify the intermittent leave and struggle with it (and have heartburn). You CAN require that he call in if he's going to be absent. You CAN track him for a pattern of same-day absences. You CAN require recertification at your option but not more than every 30 days. You CAN tell the supervisor that he cannot be terminated for these absences if you approve the FMLA.

LindaS

Agree with Don but I think if you push the issue of "headache" he will only tell you they are migraines anyway but I would do the following:

1) In your letter approving the FMLA leave inform him that he is still responsible for notifying the company in accordance with your normal attendance policy. If this means that voice mail is not sufficient, he needs to know that.

2) Tell him that when he is calling in he needs to specify FMLA or his leave will not be approved.

3) If your normal attendance policy requires that after a certain number of days absent the employee is required to return with a physician's slip, make sure the employee knows he is expected to do the same regardless of his FMLA approval.

Migraines, among other chronic illnesses, are very difficult to control as it pertains to FMLA. Because his migraines aren't a continuous thing, I think you would be hard pressed to place him on leave unless the physician certifies this. You also cannot terminate him for using FMLA leave.

One last thing, after the intermittent leave has been approved you cannot require a physician's slip for each absence unless you require the same thing absences that are not FMLA qualifying.

This is a tough situation and one I am dealing with as well. The best thing you can do is make sure the employee sticks to the policies and track his time missed accordingly.

Good luck.