I’ve Really Got a Headache

by Evil HR Lady on September 3, 2008

We have an employee that has had consistent attendance problems over the course of her employment (4 years). There are times where it is better and then she falls back down again. A two week stretch of good then a bad run for a week.

Recently she has been claiming that she can not work because she has migraine headaches. This is a new excuse for her. I am trying to determine the liability to the company if we write her up for excessive tardy’s and absenteeism. I have researched migraines and I can not anything conclusive.

My first question is why has this gone on for 4 years? That makes it harder to deal with. Remember, problems seldom heal themselves. ‘Tis better to deal with the problems when they first rear their ugly little heads–or headaches in this case.

Now, do you have an attendance policy? If yes, have you been enforcing the policy across the board? I suspect not, because an oft absent employee would have been terminated a long time ago–before the migraines started. But, things are as they are and here we sit.

Two things (at least!) you need to keep in mind–the Americans with Disabilities Act and FMLA. Do migraines fall under ADA? Well, the best answer I can give you is maybe. (See, aren’t I helpful?) The question is does, do her migraines “substantially limit” a major life activity? If yes, then you must make reasonable accommodations for her, provided she can do the job. If no, then it doesn’t apply and you don’t have to accommodate her.

Let’s assume they are substantial and ADA does apply. What is a reasonable accommodation? Taking time off whenever she wants is not reasonable, in my book. Depending on the job, working flexible hours, dimmed lighting, reduced computer usage or something else can all be “reasonable accommodations.” If migraines truly are her problem, perhaps one of these accommodations will solve the work problem.

It probably won’t, though. I imagine a migraine strong enough to substantially limit a major life activity won’t allow her to function through the day, even with all the reasonable accommodations in the world. Which brings us to FMLA.

In order to qualify for FMLA she needs a doctor involved. Once the paperwork is filled out and she’s granted “intermittant” FMLA–which means she can take off when she needs to for her illness–she’s limited to 60 days (12 weeks x 5 days a week) of time off due to her qualifying illness. After that, you can terminate her for absenteeism.

FMLA is tricky because while she is out on an FMLA approved absence you can’t count any work she didn’t do against her. It’s easier to administer a traditional FMLA leave where multiple weeks are taken together.

If she doesn’t qualify under FMLA and she’s still absent fire her.

But acknowledge that you should have dealt with this years ago. You should have an attendance policy in place and if her multiple absences violated that, then she should have been terminated. Without an attendance policy it’s difficult to be fair across the board. She should be an at will employee, which means you can terminate her at any time. But, if you are concerned that she will cause problems, offer her some severance in exchange for a general release. Make very sure that you don’t ask her to waive her rights to FMLA, because from what I understand, that’s not waivable.

Good luck!

{ 18 comments… read them below or add one }

deb September 4, 2008 at 1:51 am

as a migrane sufferer, i’d like to comment. ;-)

first of all, evil’s prescription for handling the situation is right on.

as for my personal situation, i was actually diagnosed with migranes at 11. i had to undergo all sorts of tests at the time because they wanted to be sure it wasn’t a tumor. they wouldn’t prescribe medication at that young age, so i took to banging my head against the wall. (there’s a tremendous moment of release and relief and if you’re in that much pain……)

it freaked my mother (the good witch of the south) right out.

fortunately, modern medicine has progressed tremendously since that time. because a migrane could well take me out for three days. during a migrane, i cannot stand light or sound. now, i have medication that is fabulous and i swear by it. but it’s not medication that allows me to really function (or drive) and basically means i’m limited to “being knocked out” for about a day.

so a true migrane can be debilitating. but, there are also various causes and various ways to manage them.

i have had times where i was under tremendous stress and had five or six in a year. i’ve also gone a year and a half without them.

and…..too often, it’s an “easy excuse”. many people do either use it as an excuse or take a ‘bad headache’ and call it a migrane. (trust me, a migrane is much worse than just a bad headache.)

but migrane’s are bad enough to deal with that anyone i know who suffers from them (myself included) will have documentation from a physician and probably have a prescription for them (because why would you not, if you’re working and have health care…ha)……

so take it seriously. but know it’s often used as an ‘easy excuse’ by many to take a day off. and also know….that someone who really does suffer from them will have gone to a doctor because they’re just too much to deal with on your own.

all the best!
deb

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Ask a Manager September 4, 2008 at 3:21 am

I will be a geek and add that the ADA still permits you to require that she perform the essential functions of the job, whatever those may be. And that FMLA doesn’t apply if you have fewer than 50 employees, although you may have a state version that still applies to you.

On the non-legal side of things: Sit down with her and tell her that her absenteeism is severely impacting her ability to do her job (ideally you would have said this four years ago) and that you have tried to be accommodating but need her to be reliably present, unless she is going the FMLA route. In other words, give her a clear warning that things are changing.

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HR Godess September 4, 2008 at 2:23 pm

Great advice. Many times, employers who do not enforce rules on a regular basis, get caught when they decide it’s time to enforce the rules. However, it’s certainly easier to ignore a problem and hope it clears itself up. Trouble with that is that they rarely clear up on their own.

I would definitely have a conversation with this person. Explain the concerns, explain her options (should FMLA be in play) and explain the consequences (should their be any). Be certain that if you state there are consequences, you follow through with what you say. I can’t tell you how many times I’ve gone forward with enforcing a policy to have the owner decide he wasn’t ready to terminate someone. You lose credibility that takes years to gain back!

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Anonymous September 4, 2008 at 2:31 pm

Have you considered doing drug testing? One of the tells with drug abuse is the cyclical one week bad, two week good that you’re describing.

You probably have a policy in place or can implement one now quite easily. A former co-worker that also cycled through good and bad periods of absenteeism and tardiness was drug tested and fired for a positive test, and then put in prison several weeks later for felony heroin possesion with intent to distribute. Her chronic work problem was masking her “I’m shooting heroin and too stoned to drive right now” problem.

Just a thought.

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jaded hr rep September 4, 2008 at 4:29 pm

Even if you suspect it might be protected by ADA (or the employee is claiming it is), the HR Manager can still ask for a doctor’s note. Usually the doctor can confirm what accomodation may be needed (i.e., less hours? no bright lights? etc.) This will also help you to determine what are reasonable accomodations you can or cannot make for the employee.

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Infamous HR Guy September 4, 2008 at 5:27 pm

Ah the nightmare that is “FMLA”

In today’s economic climate rarely will you find a company who has the resources to effectively track, document and follow-up correctly.

I have done three major manager trainings lately in an effort to curtail abuse at my new job.

A few important points:
1. Knowledge of an illness, believe it or not is construed as “notice.” By law your response (“notice” is the term used in the FMLA verbage) should have been 2 business days after she gave indication of exceeding normal time off.

2. You should require a doctors note after 3 consecutive days the employee is absent and after they exceed your sick time policy (does not have to be consecutive, just the same excuse) you should require the DOL Medical Certification Form be completed by a licensed professional.

http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf

3. Draft a letter stating the employees rights under FMLA and your company policy and state that this is notice to start the 12 week clock ticking. (You can also set a company standard minimum on intermittent leave to assist you with tracking).

4. Keeping with consistent practice talk with all your managers and address similar issues regarding any other employees out on leave.

I could go on up until about 20 or so, but these are the basics.

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Infamous HR Guy September 4, 2008 at 5:29 pm

Re: drug testing

Unless you and your management staff have went thru some sort of “Reasonable Suspicion” training I strongly urge you to not take this route. It will open a can of fire breathing worms…especially if someone else in your company is abusing the leave policy.

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Anonymous September 4, 2008 at 5:49 pm

Rather than a drug test, what about referring her to the company’s EAP program (if one exists)? They usually cover all sorts of issues, so whether it’s a drug thing or a bona fide migraine issue, they can help her to learn to manage her life in a more responsible and productive way.

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Rachel - I Hate HR September 4, 2008 at 10:05 pm

I find some of the suggestions in these comments rather odd.

I would not recommend drug testing without cause. Missing work is not cause.

EAP is also not going to help her with her migraines. The only thing that helps is medication and/or time.

I do think it’s odd that the person is bringing up migraines now. They do get more frequent and worse over time but she’s been taking a consistent amount of time off for 4 years. There’s no way she didn’t know she was having migraines. Trust me, there’s no way.

I would discipline now and deal with FMLA next time.

On a personal note I left work an hour into the day a few weeks ago for what I thought was just a small migraine. I went home and it quickly became my worst migraine ever culminating in me vomiting and being unable to sleep, read, essentially do anything for 7 hours. In short, they suck.

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Anonymous September 5, 2008 at 11:15 am

Hmmmm I agree with most of of the peple above. Talk to her. it looks to me she’s got a drinking problem or drug problem. or she is just a lazy person…

Isn’t this why we love HR?! I was in hospitality for many years and finally moving on to HR. I thought I would get rid of those crazy travellers….guess what?! All the employees are the same, but with different issues… :)

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Mary Kay September 5, 2008 at 11:28 am

Well it amazes me how many people assume drug and alcohol without even speaking to the employee. Yes you need to get a neurologist (not just a doctor) involved if she has migraine..she may have had them all her life and they were managable but for some reason are flaring now. Migraines do that and it is quite common. From a medical point of view this should be investigated further.

We sign FMLA papers at our clinic and I believe it is for intermittant FMLA.

Don’t dismiss migraines or any illness as a “faker”. So many employees are terrified of losing their jobs in today’s economy that they will wait until things are severe before they say anything.

Infamous HR guy seemed to have the best recommendations but I would give this person the chance to prove what is wrong..if they can’t or refuse then you have every right to take action.

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Evil HR Lady September 5, 2008 at 11:51 am

Infamous HR Guy–I want to steal your phrase: “open a can of fire breathing worms.” That is about the most awesome image. I love it.

I also say no to presuming drug abuse. From what I know, I think the employee is lying–just because she’s had attendance problems for years and NOW she claims migraines as the reason when she senses a crack down is about to occur. And you do need to be careful with drug testing.

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Anonymous September 9, 2008 at 12:55 pm

If the employee has said they need time off due to migranes, they have requested leave under the FMLA. Now it is the company’s move.
Yes, print out the DOL 380 form and get medical documentation. If the leave is going to be intermittant, then the provider must give and estimate of how often the employee is expected to be absent and how long these absences may last. Often the providers will say “unknown.” Push back with two options: either the employee must get a physician’s note each time they are absent, or the provider needs to give an estimate. This is not a matter of you being difficult, but rather it is the provider giving clear expectations to the patient and the employer about what to expect going forward. If they give an estimate, you are not permitted to require a return to work document so long as the absence is consistent with the documentation.

The FMLA, if used properly, often improves communcation between the provider and the patient, as well as the employer and the employee. You can’t track or document FMLA properly without a conversation about what is going on with the employee. You also can not administrate it well without talking about what happens when the FMLA time is exhausted.

If you don’t have an FMLA policy, and/or it is not posted or given to each employee, you need to start there and apply it across the board to all employees. If you have not followed your existing policy (including notifying employees in writing when they have used FMLA) then redistriubte your policy and start over.

The DOL takes a generous view of employee’s rights under the FMLA, so if you go this route, take the time and do it right.

If you don’t go this route, do NOT mention attendance at all to the employee and focus on performance only. But she may still raise FMLA as a defense if you discipline or terminate.

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Infamous HR Guy September 9, 2008 at 4:22 pm

Use it all you want, my managers know it well…lol

The other one is:

“How many cuts can you make before the wounds won’t stop bleeding” referring of course to our continuous lay-offs since January of 2007. Some 12 or 13 this year alone…

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HR in Phoenix September 9, 2008 at 10:09 pm

Before an employer goes in to even entertaining the thought that ADA and/or FMLA might be an issue, defining whether or not your company HAS to comply with those laws is the first step. I can’t speak to the state you are in, however, federally, an employer nees to have 15 EE’s to be covered by ADA, and 50 EE’s (within 75 miles of each other) to be covered by FMLA.

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Anonymous September 12, 2008 at 1:09 am

Put her on probation and document the issue before you even breathe the words FMLA ( assuming you believe she is abusing the system).

Assume the best, prepare for the worst.

I was in a very similar situation a few years ago and bonus! my migraine sufferer was a sociopath (oh that was fun,a sociopath on narcotics wearing a diaper–she was a sociopath who ‘shared’). Anyway, once she filed FMLA HR would not touch her (despite telling us that we had the best documented case for termination they had ever seen) and I was stuck with her for another year before someone in HR grew a pair and we let her go.

So get your documentation in order. Put her on probation. This establishes precedent so if you do terminate while she’s under FMLA you can prove it wasn’t retaliatory.

Of course, I’m assuming there are performance issues beyond the absence (which was my situation). Absence I can handle, with a responsible employee anything can be worked out. But flakey people with major mental health issues and a heavy narcotic pain killer habit, are another kettle of fish entirely.

You need to talk to HR and your manager and come up with an action plan and exit strategy for this person (again assuming the are abusing the system).

Anonymous Mr. M

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Anonymous May 7, 2009 at 12:43 am

Infamous HR guy is exactly why employees with legitimate migraines obtain attorneys and sue the pants off companies for disability discrimination. Anyone who wants to listen to this idiot accuse people of abusing drugs and alcohol when the woman in question may indeed have a very serious neurological condition is as stupid as he is and deserves to have the consequences. I could only wish you could feel the intense pain, photophobia, phonophobia, nausea and attendant exhaustion for 3 to 5 days during a status migranosous episode.

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HR Wench March 29, 2013 at 2:03 am

I would love to resurrect this comment section. I’m both in HR and a migraine sufferer with documentation…for an employer that’s covered by FMLA. I’ve never needed to invoke my FMLA rights, and until today, thought I had a reasonable accommodation (our entire department is on flextime and I come in about 10:30-11 everyday and stay until 7-7:30). Flex schedule under policy is M-Sat, 6am-8pm. My boss knows I see a neurologist, knows (or has had knowledge) that I take migraine specific drugs (prophylactic and narcotic or triptans). There is no cure for migraines and they get worse under stress or due to other injury (think recent motorcycle crash and neck/shoulder injury), as well as with seasonal changes. I was informed today we would be put on a “core schedule” (supervisors can create core schedules) from 9-3:30 (normal business hours are until 5) and one woman in our department utilizes the flex schedule to work Mon-Thurs, all others are there by 9 and usually the earliest the others would leave is 3:30. So I strongly believe I’m being singled out for this schedule. I am not aware whether or not the Mon-Thurs woman will be required to change to Mon-Fri now. He’s also given me an increase in pay several years ago citing, as he handed me the personnel action, that he hoped my coming in late really was due to migraine and not something else. And he has increased my duties several times stating he would “compensate” me but I never saw anything…the latest when he abolished a position he split duties between me and another woman to which he gave an increase to for the accretion of duties (she happens to normally get in about 7am). Any thoughts?

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