Q–I have worked at my company for 15 years. I have suffered from migraines since I was 18, but in the past two years they have become more frequent and severe. This illness can render me unable to function from one to three days at a time, two to three times a month. In the past year, I have submitted quarterly notes from my general physician and my neurologist to explain my absences. At first my managers said not to worry because my illness was considered a disability. But several months ago I was told my absences had become a disciplinary problem and if I were absent just three more days, I would be fired. The company also denied me the cost-of-living raise we receive each year. My doctor told me I was protected under the Family Medical Leave Act, so I filed papers immediately with the human resources department. What are my rights?
A–You may have rights under the FMLA and the Americans With Disabilities Act, but the rights and procedures are substantially different and you should seek expert advice to see which might be best for you to use. You have gotten off on the right foot by providing doctors’ notes and discussing the problem with your supervisor, according to Harry Sangerman, labor and employment law partner at McDermott, Will & Emery. This can constitute notice that the FMLA and ADA may apply.
Although the FMLA and ADA are separate statutes enforced by different agencies, both must be considered together when a condition is recognized by both Acts.
The FMLA covers employers with 50 or more employees and the employee must have been employed at least 12 months and have worked at least 1,250 hours during the 12 months prior to the medical leave. The ADA covers employers with 15 or more employees. Sangerman says the Department of Labor recommends using an FMLA form, which most human resources personnel should be aware of and should provide for you. The form enables the employee to provide the employer with all the information it needs to apply FMLA principles.
But the FMLA only allows 60 days of absences per year and is without pay. If you exceed that number, you are no longer protected and can be disciplined, assuming other laws are not involved. Your migraines sound like they would constitute a “serious health condition” under the FMLA permit intermittent leave. This means that the 60 days can be taken when needed.
The ADA operates differently. Sangerman says that when the employer is on notice that the otherwise qualified employee has a disability and the employee requests or even intimates that some accommodation is needed, the employer must make a reasonable accommodation. (For example, if an employee needs kidney dialysis every Friday, an accommodation might be to have the person work other days to make up the time.) Possible accommodations for your situation might be for your employer to offer you another job where you are not critical to the work being performed, a flexible work arrangement where another employee substitutes for you when you are off or a part-time job if you can’t make up the time missed due to your illness.
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Write to Lindsey Novak, Jobs, Room 400, 435 N. Michigan Ave., Chicago, 60611. E-mail her at AtWorkbyLN@aol.com.
