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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 Migraine.com (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.

This article represents the opinions, thoughts, and experiences of the author; none of this content has been paid for by any advertiser. The Migraine.com team does not recommend or endorse any products or treatments discussed herein. Learn more about how we maintain editorial integrity here.

Comments

  • Emily
    6 years ago

    The more I see on stuff like this, the more I realize how incredibly lucky I was. I worked for the military (as a civilian employee, not a contractor), but had support from my supervisor (and two more levels above that, that I’m aware of) above and beyond what I think FMLA requires. I can’t imagine what would have happened without their assistance. And even now, it would be awful if I didn’t have the benefits that extend beyond separation.

  • Jennifer
    6 years ago

    I worked for twelve years at a major medical center. Never had any performance issues. I was fired after I exceeded my FMLA, even though I have had this for 30+ years and was being treated by neurologist and other physicians at this center. It was devastating… but here I am a little over a year later. My illness isn’t much better, but I applied and was approved for SSDI. I am fortunate to have a wonderful family and partner that support me. The constant worry of being fired has helped.

  • Sara
    6 years ago

    My two pieces of advice (I was fired from my last job for migraine):1) Try to get on some kind of disability ASAP (temporary, part-time) and 2) Find a good lawyer…. Best of luck!

  • Vicki
    6 years ago

    My job allows 3 absences in a 6 month period. Anything over over 3 consecutive days requires a “leave”. I work in retail and we are very shorthanded. It’s been extremely stressful for a while, and I’m having 4-6 migraines a week right now, of different severities. I’m eating the Imitrex like candy. Yes, my migraines put my job in jeopardy. I very rarely ever need more than one day off.

    After 11 1/2 years, I’ve decided to find another company where hopefully it will be a more positive environment.

  • Marsha
    6 years ago

    Depending on the size and kind of organization you work for and the nature of your position, you likely would be entitled to ongoing, ADA accommodations in the form of unscheduled days off as needed in response to migraine attacks. I strongly encourage you to contact an employment law attorney to seek advice on your rights under the federal Americans with Disabilities Act (ADA) and state disability discrimination laws. If your employer is subject to ADA (and comparable state) requirements, and your migraines fall under the legal definition of a covered “disability” (they likely would), then the employer would be legally required to provide you with “reasonable” accommodations that would enable you to perform your job. In many situations, unscheduled days off would be viewed as a reasonable accommodation.

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