I've had TMJ (or TMD) since I was a kid. My dentist & primary physician are aware of it and my insurance won't cover any treatment related to it.
Occasionally, it flares up for some reason really bad. I work in a call center and when it flares badly I cannot work as I can barely open my jaw let alone talk. Opening my mouth sounds like knuckles cracking. It causes severe pain in one of my ears & limits my ability to hear properly. My physician advises me to rest, take NSAIDs, and use warm compresses to help with the pain.
Does this qualify as 'serious' enough for FMLA? Or could I ask my supervisor for another duty , not requiring me to talk all day, during flare ups?
The first question is whether the FMLA covers your employer and you. Your employer has to comply with the FMLA if it has at least 50 employees. You are covered if you (i) there are at least 50 employees either at your worksite or within 75 miles of your worksite where, (ii) you have worked for your employer for at least 12 months (doesn't have to be consecutive) and (iii) you have worked at least 1250 hours within the preceding 12 months.
If both you and your employer are covered, then you would be entitled to protected time off in several situations, including time off related to your own serious health condition. A "serious health condition" under the FMLA has several definitions. It sounds like your condition might be a "serious health condition" under the "chronic condition" definition. The regulation reads as follows:
"A chronic serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider;
(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity ( e.g. , asthma, diabetes, epilepsy, etc.)."
If you qualify for protection under the FMLA, then you would be entitled to up 12 weeks of protected time off annually as necessary to treat or recover from your serious health condition. (How those 12 weeks get counted is another issue with a number of factors.) "Protected" means that your employer could not take adverse action against you on account of any covered absences related to your serious health condition.
Your question also raises a potential reasonable accommodation issue under the Americans with Disabilities Act.
I encourage you to consult with an employment lawyer.
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