Legal Question in Medical Leave in Florida
FMLA, Migraine & Dr's Note
After calling in sick for a migraine headache which is covered by FMLA paperwork signed by my neurologist, my employer advised me that I would need a doctor's note to return to work or they will not consider my headache covered under FMLA. It will count against me and will likely result in a 5 day suspension. I called my physician, who offered to fax my company a doctor's note but we both agree that I cannot drive myself to the Dr. And it is not convenient for a family member to get off work themselves and drive me to the doctor. On top of that, my Dr. visit is $25 copayment I cannot afford to pay every time I have a migraine. I've had migraines since I was 14 years old. I have a long history of them. I'm 41 now. I can't afford to miss work. It's unpaid if it extends over my sick time which it often does because of the frequency. I certainly do not call in with a migraine on a whim. In addition... my employer has suggested this time and several time before, that I needed to take the same medication as another employee does, which will prevent the migraines. My neurologist doesn't agree with this assessment for multiple reasons. Must I have a doctors note when I am already covered by fmla?
1 Answer from Attorneys
Re: FMLA, Migraine & Dr's Note
The law does allow the employer to ask for the note if they have a uniform policy that requires return to work certification from everyone in the same situation. See http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.310.htm for the regulation, which is at dol.gov.
However, the employer must apply it evenly, and must have given you notice in advance that you would need it - either when you left or right after when they found out about the condition. If they did not, they may not have the right to ask now. For example, if they gave you advance notice, your doctor might have been able to give you a return to work note at the same time he filled out the FMLA form. It could have said "migraine not expected to last more than 3 days, return to work safe after that? or something similar.
So, you can point out the reg to the employer and tell them they can not ask for the note now. See if they agree. If not and you want to push it, you can file a free complaint with the DOL. The problem is that in the meantime, the employer will not let you return. So another option is to get the note and return, but file the complaint in order to try to get the employer to reimburse you since they arguably did not have the right to send you (if they did not give advance notice - but it is not a black and white issue).
Good luck and be well.
Jeff Sheldon
Jeffrey L. Sheldon
The Sheldon Law Firm
CAVEAT: This is only general advice based on limited facts and knowledge of the situation. It thus can not be relied upon as legal advice nor is the author responsible or liable for any actions by the parties involved in the matter.
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