Did you know that having a migraine headache qualifies an employee for FMLA coverage?

Migraines are protected under the FMLA and possible the ADA
Migraines are protected under the FMLA and possible the ADA

I happen to know several people that suffer from migraine headaches. They can be a major annoyance all the way to a debilitating condition. Some people just cannot function when such an attack occurs. Turns out they can also be a major pain for employers if they do not deal with them correctly. As my friend Jeff Nowak says in his blog “the FMLA offers the same protections for migraines as it does for open heart surgery.”

The case that was a major headache

Jeff Nowak, at FMLAInsights.com, describes a case at Boeing that did not end well for the company. The employee Jill had a history of migraines that had become progressively worse and more often. She handled it by taking partial days off and then telecommuting. In 2012 the company changed its policy of allowing partial days off (a possible response to FSLA issues?) so Jill ended up being gone full days, which certainly had an effect on her performance. Jill was told she could take FMLA time for those absences so she took intermittent leave to cover the days of pain. Her work performance suffered and she was disciplined for unexcused absences. And then she took 4 days of FMLA for migraines and she was terminated.

Going to trial

As you can imagine Jill sued and as often happens Boeing’s defense attorney filed for summary judgment (basically that means they asked the judge to decide.) The judge in this case however said nope. He was a bit more eloquent than that. His actually words were:

This is direct evidence that Boeing’s discipline and termination were because of plaintiff’s absenteeism, which resulted from her migraines.17 Riehl, 152 Wn. 2d at 152. The court finds that plaintiff has presented sufficient evidence that creates a triable issue of fact regarding whether Boeing’s discipline and termination for plaintiff’s absenteeism (conduct resulting from her migraines) demonstrates discriminatory motive. Since plaintiff has provided direct evidence of discriminatory animus that creates a genuine dispute of material fact, the court need not analyze whether plaintiff has also established a prima facie case under McDonnell Douglas.
For all the foregoing reasons, the court DENIES defendant’s motion for summary judgment.
Dated this 28th day of July, 2014

Three strikes

Jeff says that Boeing committed errors that worked against them. These were:

  1. Boeing ignored or did not know that migraines are protected by the FMLA. There is a line in the law that says headaches are not serious health conditions, unless they are migraines.
  2. The second thing they did was they used her absences against her in evaluating her performance. They even said she was really good when she was there, she just wasn’t there. Oops.
  3. They terminated her for job abandonment right after she applied for her four days of FMLA. Double oops.

These decisions fall into that arena known as “stupid HR.”


Jeff suggests several things that might have kept them out of court. His advice:

1)    find out the medical facts behind the employee’s absence (in other words, talk to the employee!);

2)     if necessary, obtain medical certification so you can better understand the alleged serious health condition and the need for and length of leave;

3)    give the employee time to provide the requested medical certification; and

4)    avoid making termination decisions unless and until you have reviewed the medical certification and — with legal counsel — have decided that termination is warranted based on legitimate, non-discriminatory reasons.

Another attorney I read all the time, Eric Meyer, also suggests that migraines may cause you some ADA problems as well. So know what you are dealing with.

Thanks to Jeff

I had the good fortune to meet Jeff at the State Conference for Illinois SHRM that was held in Oakbrook Terrace earlier this week. I did not get to see his session as mine was going on at the same time but I found him when he finished. I appreciate that he does not mind me using his stuff as inspiration.

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