FMLA for migraines: do they qualify, and how intermittent leave works

Do migraines qualify for FMLA?

Nothing in the FMLA rules migraine out. 29 CFR 825.113(d), the list of what ordinarily does not count, reads: "Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave." Migraine is carved out of the exclusion by name.

A carve-out is not a promise. A migraine still has to meet the definition at 825.113(a): an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. What counts as a serious health condition covers the whole test.

The route that fits a recurring condition is the chronic serious health condition at 825.115(c), one which "(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.)." How intermittent FMLA works treats that route in full.

Is it hard to get FMLA for migraines?

Eligibility comes first. Under 29 CFR 825.110 you are eligible if your employer has 50 or more employees within 75 miles of your worksite, you have 12 months of employment there, and you have 1,250 hours of service in the preceding 12 months. Eligibility is necessary and not sufficient: the absence must also be for a qualifying serious health condition, and your employer must designate it as FMLA leave.

No visit is required for every absence. Under 825.115(f), chronic-route absences "qualify for FMLA leave even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days." A migraine day at home fits those words.

Then the clocks. The certification is due within 15 calendar days after your employer requests it, under 825.305(b), unless that is not practicable despite your diligent good-faith efforts or your employer allows more time. If it comes back "incomplete" or "insufficient", 825.305(c) requires the employer to state in writing what is needed and to allow "seven calendar days (unless not practicable under the particular circumstances despite the employee's diligent good faith efforts)" to cure it. Under 825.313, the days inside the 15-day window are protected, and so are the days from the day the certification is received; the stretch between the deadline and the day it arrives is the part exposed. Never produced, the leave is not FMLA leave. Can FMLA be backdated covers late paperwork.

Can you get intermittent FMLA for migraines?

Intermittent leave fits this shape of absence. 825.202(a) defines it as "FMLA leave taken in separate blocks of time due to a single qualifying reason". Under 825.202(b), it covers absences where you are incapacitated because of a chronic serious health condition "even if he or she does not receive treatment by a health care provider". A migraine that arrives without warning, or ends a workday partway through, is the absence those words describe.

For migraines, the entry that matters is the estimate. For a condition "that may result in unforeseeable episodes of incapacity", 825.306(a)(7) asks the certification for "an estimate of the frequency and duration of the episodes of incapacity". That estimate is a clinical finding from the evaluation, not a figure you choose. The mechanics are in How intermittent FMLA works.

Certicare is a telehealth service where leave and accommodation paperwork is completed and signed by a state-licensed provider after an evaluation. For migraines that is the FMLA certification, including the intermittent-leave estimate where the evaluation supports one, usually within 24 hours after we have everything needed. Usually no appointment; a provider may follow up for more detail before deciding. $49 covers one leave case: the clinical review, the forms that case needs, and any follow-up your employer or leave administrator asks for afterward. Completing our intake form starts the review; it does not guarantee a signature, and if the review does not support your request you are refunded in full.

How much FMLA can you get for migraines?

Up to 12 workweeks of leave in a 12-month period, under 29 CFR 825.200, for eligible employees. Intermittent time draws on the same entitlement. Under 825.205(a)(1), the employer accounts for it in an increment no greater than the one it uses for other forms of leave, and never greater than one hour, and "an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken". A partial day costs the hours taken, not the day.

The leave itself is unpaid under the FMLA; 825.207 lets accrued paid leave be substituted, under the employer's normal rules. Short-term disability vs FMLA covers pay.

The estimate on the certification is an estimate, not a cap and not a quota.

Recertification, under 825.308: no more often than every 30 days "and only in connection with an absence". Where the certification states a minimum duration longer than 30 days, the employer generally waits for it, and "In all cases, an employer may request a recertification of a medical condition every six months in connection with an absence". Sooner than 30 days only where you ask to extend the leave, where circumstances have "changed significantly", or where the employer "receives information that casts doubt upon the employee's stated reason".

What goes on the FMLA certification for migraines?

The central entry on 29 CFR 825.306 is (a)(3): "A statement or description of appropriate medical facts regarding the patient's health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment". The operative words are "may include". A diagnosis is not required on the certification.

Two more entries matter for migraines. (a)(4) asks for "information sufficient to establish that the employee cannot perform the essential functions of the employee's job". (a)(7) asks, for intermittent or reduced schedule leave for a condition "that may result in unforeseeable episodes of incapacity", for "information sufficient to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity". What the provider writes there is what the evaluation shows.

The form can vary. Your employer may use its own, and under 825.306(b) a complete and sufficient certification must be accepted on "another form containing the same basic information". Who can complete it is set by 825.125; nurse practitioners and physician assistants are at (b)(2). If your own provider declines, doctor won't fill out FMLA paperwork covers that.

What happens when a migraine hits during a shift?

When the need for leave is not foreseeable, 825.303(a) requires notice "as soon as practicable under the facts and circumstances of the particular case". Under 825.303(b), "Calling in 'sick' without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act." And where your employer has already given you FMLA-protected leave for the same reason, "the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave."

Under 825.303(c), "an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances." The DOL FMLA FAQ's own example is a migraine: an employee with a certification on file who cannot report at the start of a shift, follows the employer's call-in procedure, and has given appropriate notice.

Retroactive designation under 825.301(d) exists where the missed designation caused no harm, or where you and your employer agree; Can FMLA be backdated covers it.

Can you be fired for missing work because of migraines?

Where the FMLA applies, 29 CFR 825.220(c) bars your employer from using FMLA leave as a negative factor in employment actions, and FMLA leave cannot be counted under a no-fault attendance policy. 825.216 holds at the same time: you have no greater right to reinstatement than if continuously employed, and the employer carries the burden of showing that is what happened. Fired for taking leave covers what to do afterward.

The ADA runs on its own test and reaches employers with 15 or more employees. Under 29 CFR 1630.2(j)(1)(vii), "An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." Under (j)(1)(vi), that is judged "without regard to the ameliorative effects of mitigating measures". ADA leave and Employer can't accommodate restrictions cover accommodation.

You don't need to know how your employer will designate it before you start. Answer the intake questions, and a state-licensed provider completes and signs the certification your leave needs, where the evaluation supports it.