I have an employee who is requesting FMLA paperwork due to having migraines. From my records, I do not see where she has missed 3 consecutive days of work in a row at any given time. She does meet all preliminary requirement for FMLA (worked 12 months, worked 1250 hours, and we have more than 50 employees). Do migraines typically fall under FMLA?
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There is detailed information about the FMLA on HR.BLR.com. This includes a definition of the term “serious health condition” under the FMLA.
A period of incapacity of more than 3 consecutive, full calendar days is a requirement for one of the categories of health conditions that will qualify—as you will see in the first bullet point below.
Below is information from HR.BLR.com regarding the definition of “serious health condition.” Migraines could meet the definition under the first or third bullet point. From HR.BLR.com: The definition of a “serious health condition” includes an illness, injury, impairment, or physical or mental condition that involves either inpatient care (i.e., an overnight stay in a hospital, hospice, or residential care facility) or continuing treatment by a healthcare provider.
To qualify as “continuing treatment,” the condition must involve:
- A period of incapacity of more than 3 consecutive, full calendar days, and any subsequent treatment or period of incapacity for the same condition that also involves either:
(1) Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist, or
(2) Treatment by a healthcare provider at least once that results in a regimen of continuing treatment under the supervision of the healthcare provider (The requirement for treatment by a healthcare provider means an in-person visit to that healthcare provider. The first (or only) in-person treatment visit must take place within 7 days of the first day of incapacity.) - Any period of incapacity because of pregnancy or prenatal care
- Any period of incapacity because of a chronic, serious condition (A chronic, serious health condition is one that requires periodic visits, at least twice a year, for treatment by a healthcare provider (e.g., asthma, diabetes, epilepsy)
- A period of incapacity that is permanent or long-term because of a condition for which treatment may not be effective (e.g., Alzheimer’s disease)
- Any period of absence to receive multiple treatments by a healthcare provider (e.g., for reconstructive surgery after an accident or injury) or for a condition that would likely result in a period of incapacity of more than 3 consecutive, full days if untreated, such as for cancer (chemotherapy) or kidney disease (dialysis)
Where there is any doubt as to whether a condition constitutes a serious health condition, it is wise to request medical certification of the condition from a healthcare provider.
It is important to note that Section 825.113 (d) of the FMLA regulations make a distinction between ordinary headaches, which do not qualify as a serious health condition under the FMLA, and migraines, which may qualify as a serious health condition.
§825.113(d) states: Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or unless complications develop. 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. Restorative dental or plastic surgery after an injury or removal of cancerous growths are serious health conditions provided all the other conditions of this regulation are met. Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met.
When there is a doubt about whether a condition qualifies, employers should request a medical certification so they can determine if the individual has a serious health condition as defined by the FMLA.