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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20400
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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My husband has FMLA. He has had intermittent FMLA couple

Customer Question

My husband has FMLA for migranes. He has had intermittent FMLA for a couple years to cover when they are so bad that he cannot manage them. Recently there have been issues with the Union and the company. He had been working 12 hours shifts equaling 14 working days per month. So as a result some of his migranes would fall on days he was off work. Now that the schedule has changed, he is working 7 days in a row, 8 hours a day. This gives him more days working and less off. As a result his migranes hit more physical days working.
Due to the increase they are asking for re-certification which I totally expected. However, the doctors are being asked to state exactly how many they expect him to have each month. Some months are worse than other and the weather plays a large contributor to the number of migranes he has.
The company that administers the FMLA for the employer just threatened him that they now wanted re-certification of not only FMLA going forward but backwards for all the time he has missed. It all has to do with the way the doctor wrote the note in the first place. It was written 2 - 3 episodes lasting 2-3 days at a time. They originally told him he could use up to 6 days per month. However, his migranes may only last one day or his medication might make it possible to go in for a partial day. All depends on the severity. Now they are saying he could only have 2 "absences" for his migranes a month and that they will go back and say that all the absences he had before are now not approved. Which will get him fired of course. I honestly believe that is what they are trying to do.
Can they do that?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 2 years ago.


Thank you or the information and your question. If you are asking if the employer can terminate your husband for using FMLA if he needed it, then the answer is no. In addition, the employer cannot retaliate against him or having used or using FMLA if for a certified issue. The employer could only terminate him if they find reliable evidence of fraud in his use of FMLA time. As long as his physician can say that his time off is within the parameters of hid health issue, that should be sufficient. It would not be unlawful for the employer to ask for recertification based on a new work schedule if the prior certification was not written in a way that notified the employer about how many days a month, on average, the problem might arise.

If your husband believes the employer is intentionally harassing him or they try to take an adverse employment action specifically based on FMLA, then he needs to sit down with a local attorney who handles FMLA issues as soon as possible and also work with his union to grieve any action that might fall under the BA.

Please let me know if you need clarification.

Expert:  Marsha411JD replied 2 years ago.
Hello again,
I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 17th. For some unknown reason, the Experts are not always getting replies or ratings (in the pop up box for this question, which is how we get credit (paid) for our work) that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.
In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at:
Thank you.