Can anything be done?

LindaS · July 2003

I have an employee who has been approved for FMLA leave (intermittent) for migraines. As I'm sure you're all aware, there is no way to schedule these and she leaves work whenever she gets one. Here's the problem...

She was placed on a new job, at her request, back in January. This job had a significant pay increase but also requires alot more technical skills and training. This is a machine setup position and each job requires a different setup, etc.. The problem we are having is that she is missing so much time, her training has been taking alot longer than it should and the other employees are becoming frustrated. In addition, whenever she has a setup that is difficult, or she is having problems with, she leaves work claiming FMLA. It is then up to the other setup people to finish her work as well as their own.

She has recently been complaining she is not getting assistance from the senior people in the department, which is probably true but I don't know that I can blame them since they are being left to pick up her slack when she leaves. She has missed almost 300 hours from January through June for FMLA.

Is there anything I can do to address the situation? At this point we don't know if she can do the job because she has missed so much time that she hasn't been able to get the training.

Nrdgrrl · July 2003

I'm sure one of our more esteemed colleagues will have a more complete answer for you, but my .02 cents is that you let her burn up her time as quickly as possible.(i.e. make it easy for her to take the time- don't force it)

Unfortunately, migraines would not allow you to transfer her to another position, even temporarily. (See reg 29 CFR 825.204)

PAhr · July 2003

Actually, if this is putting a hardship on the department you may transfer her to a different department where frequent absences will not create a problem. If you choose this route, explain to her that she is in a position where her abilities are needed on a steady basis, that due to her absences she has not completed the training she needs and that once her condition improves she is more than welcome to move back into the position. You can also ask that she recertify to make sure that her condition has not changed drastically in the past six months. Other than that there isn't much you can do.

psrcello · August 2003

I agree that she could be moved to a different position where her frequent absences won't cause a hardship in production. However, you won't be able to reduce her rate of pay during the temporary transfer. In short, you'll be paying her for the work she's supposed to be doing, while she's actually doing a different job, probably one that normally pays less. This could create its own set of problems.

SDDCHR · July 2003

Let her use her time and then go from there. I am concerned about the below comment as it may cause you some problems down the road if you look at removing her for performance versus attendance. Make sure she isn't treated any differently then anyone else!
"She has recently been complaining she is not getting assistance from the senior people in the department, which is probably true but I don't know that I can blame them since they are being left to pick up her slack when she leaves. She has missed almost 300 hours from January through June for FMLA."

awilliams · July 2003

I suffer from chronic migraine headaches, so my sympathy goes out to this person. It is very difficult to do a job while dealing with this disability. And we are talking about a disability, so the ADA is involved here as well.

Have you approached her about taking a block of time off to seek treatment? When I get into one of my "migraine cycles" I often need several days, weeks (at one point in my life months) to recuperate while my doctor tries out different treatments. If this employee has STD, you may want to suggest she use it. Also, a referral to EAP would not be out of line as well. People who suffer from chronic pain disorders often have many "issues" that a counsellor could help with.

As another post advised - I would ask that her doctor recertify her condition, and give specific instructions as to what she can and cannot do. If you feel that this employee is malingering, or taking advantage of the system, you may want to send her for a second opinion to your doctor (at your expense) to follow-up. However, there is no "test" to give to determine whether she has migraines. But a second opinion may offer you some options in terms of schedule.

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

HospHR · July 2003

Here! Here! to the second opinion. It works. If you believe you have a malingerer, and you do not have your own on-staff medical personnel to evaluate the employee the second opinion is a god send. The side effects can also be beneficial....word gets around and abuse declines. Also, you may be very surprised when a perceived malingerer turns out to be legit.!

POPEYE · July 2003

>Here! Here! to the second opinion. It works. If you believe you have a
>malingerer, and you do not have your own on-staff medical personnel to
>evaluate the employee the second opinion is a god send. The side
>effects can also be beneficial....word gets around and abuse declines.
>Also, you may be very surprised when a perceived malingerer turns out
>to be legit.!

Welcome to the forum. Getting second opinions are in some cases very valuable as you have stated. However, be cautious using on-staff personnel for a second opinion for FMLA. Take a good look at Fed Reg &825.307(2)which specifically states that the selected health care provider may not be employed on a regular basis by the employer.

Mentel · August 2003

I also suffer from migraines but they can be controlled. There are medications (and even herbs like feverfew) that can be taken to reduce the frequencey. She should also be taking something like Imitrex when she gets one. They work very fast. Migraines used to be a much bigger problem years ago but now there are a lot of good medications to try. Bio-feedback and relaxation training helps along with control of peri and menapausal symptoms. Get a report from her physician as to whether she is using any of these options. If they are available to her and she is not using them, then the problem is with her. If her doctor has not proposed alternative solutions, get a second opinion and get her help. Uncontrolled migraines are a nightmare!

dickstedt · August 2003

How about instructing her to recertify her FMLA medical documentation, and give her specific instructions that you want her health care provider [HCP] to provide or address; does her condition warrant as many absences she has had? Do you have some sort of absence analysis form that her HCP can see?

This method has worked for me, however, it could be a double-edged sword too. The HCP may come back and say her condition warrants all of her absences. Otherwise, let her use up her 480 hours and discipline.

Don D · August 2003

Now that you know this particular disability has ADA implications, I wouldn't suggest you proceed with a primary mindset of 'discipline'. As we have learned on the Forum (I have especially learned a bit about the subject) migraines are indeed a disabling medical problem. We (me included) sometimes tend to misjudge the "real-ness" of need for FMLA if the condition is an elusive one, one we don't understand or one we have little belief in. Those things, of course, are irrelevant. It's often easy for me to find myself harshly judging such absences just because I don't see a visible cast on a leg or a sling around an arm. That's when I have to sit back and think back to our earlier discussions about the real-ness of such things as migraines. I now know that these things are not 'just a free ticket to random time off'. Thanks for Ann's post.

LindaS · August 2003

Thanks to all of you for your responses. While I am not a sufferer of migraines, I am aware of how awful they can be. We decided to address her performance on the job, not taking into account her absences (obviously) and determine if she is performing at the rates she needs to be. If she isn't, we'll treat her the same as any other employee and offer her the same training, etc.

The others in her department have been instructed to assist her the same as they would any other person in training and if there are any substiantiated incidents of targeting her due to her absences, they will be dealt with accordingly.

We'll see how this goes...

Can anything be done?

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