Expert Answer: Migraines and Unexcused Absences From Work

Question: My employer is counting the days I miss work due to migraine attacks as "unexcused absences." I have worked for this employer for almost 18 years with an excellent record. When my migraines increased due to menopause I used all my sick leave, took FLMA leave and received some ADA accommodations, which helped. Though I have been working with doctors and medication I still miss work more than one day a month, which according to my employer is all that is expected in my "position description." Any advice? I can't lose my medical benefits and am not ready to retire.

Since you've already indicated your employer is required to provide you with leave under the Family Medical Leave Act (FMLA) based on your past experiences, my first suggestion would be to find out if you have exhausted your FMLA leave for the past 12 months.

I have covered FMLA leave in depth in past articles here on (The Family Medical Leave Act & Migraine Patients), but just to summarize, people whose employers are required to give them FMLA leave are entitled to 12 weeks of leave within a 12 month period. This leave can be used on an intermittent basis, which is ideal for situations like yours. Access to FMLA leave is vital for patients like us because it protects our employment status and our employer-provided health insurance.

If you haven't exhausted your FMLA leave, I'd recommend using any you have left. I also recommend finding out when you started using FMLA leave so you are aware when your 12 months starts over and you become entitled to another 12 weeks of leave.

To use your FMLA leave you must provide your employer with as much notice as is practicable. In your situation I would recommend getting in touch with whomever you report absences to as soon as you know you need to miss work. That may be the night before or that day before work begins depending on the features of the migraine attack you're dealing with.

Unfortunately, if your FMLA leave has already been exhausted, until your FMLA leave resets your options are drastically limited. In some states you may have certain employment rights that protect you, but in most states the default is employment-at-will. This means that you can be fired for almost any reason with a few narrow exceptions relating to discrimination or retaliation for whistleblowing. I would recommend contacting an attorney in your state to get more information about your rights. The state bar association can help you find someone to work with.

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