Intermittent Migraines and the Attendance Point System
Nadia works as a customer-service representative at a Fort Lauderdale insurance call center with 180 employees within 75 miles. She has been employed for 14 months but took six weeks of unpaid leave last year; payroll shows 1,180 hours worked in the prior 12 months. Nadia has chronic migraines and anxiety. Her neurologist says she may need two to three unscheduled absences per month and a later start time two days a week. The employer's no-fault attendance policy assigns one point per absence; eight points triggers termination. Nadia already has six points. She submits a one-page note saying 'patient needs intermittent leave for migraines' and asks for a 10 a.m. start. The HR manager denies the request because 'the note is not a certification' and because 'call center coverage is essential.' Nadia is written up for two absences and reaches eight points. She asks what her rights are.
1. Is Nadia entitled to FMLA leave?
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Nadia meets the 12-month and 50-employee/75-mile tests but not the 1,250-hour test. Under 29 U.S.C. § 2611(2)(A), an employee needs 1,250 hours of service in the 12 months before leave. The payroll record shows 1,180 hours; unpaid leave does not count as hours worked. Therefore, she is not currently FMLA-eligible. The employer should not treat that as the end of the inquiry. If her hours increase, she may become eligible later, and the employer should monitor her hours. Also, the employer's stated reason for denial is flawed: if she were eligible, a one-page note might be insufficient certification, but the employer must request certification in writing, allow at least 15 calendar days to respond, and cannot simply refuse to consider the request. The denial should be documented on the correct ground, not on a false FMLA premise.
2. What are the employer's obligations under the ADA?
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Migraines and anxiety may be disabilities if they substantially limit a major life activity such as neurological function, concentrating, sleeping, or working. The ADA applies because the employer has more than 15 employees. Nadia requested intermittent leave and a later start time, both of which can be reasonable accommodations. The employer must engage in the interactive process, request reasonable medical documentation, discuss alternatives such as a temporary schedule change, reassignment, or leave, and grant the accommodation unless it poses an undue hardship. 'Coverage is essential' is not enough; the employer must show significant difficulty or expense considering the size of the business and available alternatives. A no-fault attendance policy must have an exception for disability-related absences; otherwise it can operate as a qualification standard that screens out a qualified individual with a disability.
3. How should the attendance points be handled?
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Because the absences are linked to a requested accommodation, the employer should hold the points in abeyance while the interactive process is pending and remove them if an accommodation is granted. If the employer ultimately denies the accommodation, it must be able to articulate a specific undue hardship and should not use the denial as a trap. Nadia should be given a reasonable time to provide documentation, and the employer should document the process. Terminating her at eight points before completing the process would create a strong ADA and Florida Civil Rights Act retaliation claim. The employer should also train the HR manager that a request for accommodation does not require magic words or a specific form.