I have an employee who has FMLA for headaches. She said she can no longer work more than 8 hours a day. She has also requested to be changed to a different shift and department, saying that is easier on her eyes/for her headaches. We do not have any openings on the shift she requested. Are we required to put her in a department that does not need the manpower or do we tell her if she cannot do her current shift and job, then she can go on FMLA leave? Or are we required to comply with her request?
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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:
- Treatment by a healthcare provider two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist, or
- 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 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 incapacity due to pregnancy or prenatal care (which would not apply here)
- 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)
In some circumstances, headaches can qualify as a serious health condition under FMLA. Where there is any doubt as to whether a condition constitutes a serious health condition–and it sounds like you have some doubt in this case–it is wise to request medical certification of the condition from a healthcare provider.
In most cases, requests for medical certification of the need for FMLA leave should be made immediately after the employee gives notice of the need for leave or within 5 business days thereafter, or, in the case of unforeseen leave, within 5 business days after the leave commences. The employer may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration.
The employee must provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts, or unless the employer allows more than 15 calendar days to return the requested certification.
FMLA’s regulations require that an employer advise an employee whenever the employer finds a certification incomplete or insufficient, and the employer must state in writing what additional information is necessary to make the certification complete and sufficient. The employer must advise the employee within 7 calendar days (unless not practicable under the particular circumstances despite the employee’s diligent good faith efforts) to fix any deficiency.
If the deficiencies specified by the employer are not fixed in the resubmitted certification, the employer may deny the FMLA leave. It is the employee’s responsibility to provide the employer with a complete and sufficient certification and to clarify the certification if necessary.
If an employee chooses not to provide the employer with authorization allowing the employer to clarify the certification with the healthcare provider, and does not otherwise clarify the certification, the employer may deny the FMLA leave if the certification is unclear.
It is also possible that the headaches may qualify as a disability under the federal ADA or under state law.
If this is the case, you may be required to provide a reasonable accommodation to the employee. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
An individual’s request for an accommodation does not necessarily mean that the employer is required to provide the accommodation. Instead, a request for reasonable accommodation is the first step in an informal, interactive process between the individual and the employer to determine (1) whether the individual’s condition meets the ADA definition of “disability,” and (2) whether the individual is qualified. Both are prerequisites for the individual to be entitled to a reasonable accommodation.
I hope this information is useful to you, and we thank you for your inquiry. As always, we recommend consultation with a qualified local employment attorney familiar with the details of your specific situation.