Now This is a Headache! Employee Terminated for Migraine Headaches Can Advance FMLA Claim

by Franczek Radelet P.C.

headache -- funny dogIn the cold, sadistic world that is the FMLA, the Department of Labor tells us that ordinary, run-of-the-mill headaches (a/k/a “non-migraine” headaches) are not covered by the FMLA. Migraine headaches, on the other hand, are covered. When I try to explain the difference in FMLA training sessions for employers, they often look at me like I have two heads.

“Yeah right,” they tell me. “Like we’re really going to track every migraine headache as FMLA leave!?! Do you realize how busy we are?”

Refrain from designating FMLA leave for this reason at your own risk.

Now, employers have yet another reminder that the FMLA offers the same protections for migraines as it does for open heart surgery.  Here’s the scenario:

The Facts

For years, Jill’s managers at Boeing knew of her migraine headaches.  For several years leading up to 2012, plaintiff telecommuted from time to time because of her migraines, and beginning in 2012, plaintiff’s migraines became more frequent.  In spring 2012, Boeing informed employees that they could no longer work partial days when they were sick — leave had to be taken in full day increments.

In June 2012, Jill was informed for the first time that she could apply for FMLA leave to cover absences caused by her migraines. So, she took intermittent FMLA leave for the remainder of 2012, but because she was no longer allowed to work partial days, her absences were far more frequent than they were before, and her reviews suffered as a result. Jill also was disciplined for “unexcused” absences.  However, the facts indicate that at least some of these absences were due to her migraine headaches.

When she took a four-day leave of absence from April 29 through May 2, 2013 — for migraine headaches — her employment was terminated.

The Court Ruling

Finding that Jill gave sufficient notice of the need for FMLA leave and then was absent for migraine headaches, the court refused to dismiss her FMLA claims, finding that a jury could determine that her employer interfered with her right to take FMLA leave on these occasions and used her migraine-related absences as a negative factor in her employment. Alexander v. Boeing Company (pdf)

Insights for Employers

Strike One:  The employer failed to recognize that migraines could be covered by FMLA.  Despite the DOL’s pronouncement that migraine headaches are covered by the FMLA, this employer failed to consider that absences taken for this medical condition are protected. 29 C.F.R. 825.113(d)

Strike Two: The employer used Jill’s absences for migraine headaches as a negative factor in her employment evaluations, which is a sure fire way to lose on summary judgment.  Here’s what her own supervisor had to say about Jill in his deposition:

It was difficult. I know in her last performance review, it was difficult to give her an adequate performance review without her being at work as much as, as often as she missed. When she was at work, she was very effective and I alluded to that in her performance review, but the fact that she did miss a lot of work did play in the fact that she wasn’t as effective as she could have been just by the fact she wasn’t there.

That’s a supervisor who was not prepared very well for his deposition.  Had he been prepared, he would have understood that FMLA-protected absences (i.e., those days when she suffered from migraine headaches) could not have been used as a negative factor in her employment evaluation.  The court picked up on the supervisor’s testimony and quoted it verbatim when it refused to dismiss Jill’s FMLA claims.

Strike Three: Jill’s supervisors learned that she had applied for “FMLA leave,” yet they still chose to terminate her employment at that time for “job abandonment.”

Why jump the gun? In a rush to judgment and assuming the worst, Jill’s supervisors created a whole lot of liability for the company. In these situations, employers are well served to: 1) find out the medical facts behind the employee’s absence (in other words, talk to the employee!); 2) if necessary, obtain medical certification so you can better understand the alleged serious health condition and the need for and length of leave; 3) give the employee time to provide the requested medical certification; and 4) avoid making termination decisions unless and until you have reviewed the medical certification and — with legal counsel — have decided that termination is warranted based on legitimate, non-discriminatory reasons.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.