Intermittent FMLA for migraine or epilepsy: documentation

Migraine, epilepsy or asthma can take you out of work at times you cannot predict. Intermittent leave under the US federal Family and Medical Leave Act (FMLA) may cover those absences. The certification your provider completes asks how often episodes will happen and how long they last. A dated log of your episodes gives your provider concrete facts for that estimate. It works on paper or in Sam. Sam has diaries for migraine, epilepsy and asthma. Once a doctor has diagnosed the condition, they turn your entries into a doctor report PDF for your provider.

This is general information about US federal law, not legal advice for your situation.

Who can take intermittent FMLA leave, and for how long?

FMLA gives eligible employees of covered employers up to 12 workweeks of unpaid, job-protected leave in a 12-month period. Your own serious health condition is one of the qualifying reasons. Group health benefits continue on the same terms.

A private employer is covered if it had 50 or more employees in 20 or more workweeks of the current or previous calendar year. Public agencies and elementary and secondary schools are covered at any size. You are eligible after 12 months with the employer and at least 1,250 hours in the 12 months before leave starts. Your worksite also needs 50 or more employees within 75 miles.

Intermittent leave means separate blocks of time for one qualifying reason. The regulation says a block can run from an hour or more to several weeks. Only leave you actually take counts against the 12 weeks. Employers count it in increments no longer than their shortest increment for other leave, and never longer than one hour.

The leave is unpaid, but accrued paid leave can run at the same time, if your employer requires it or you choose it.

Does migraine, epilepsy or asthma count as a serious health condition?

The regulation defines a serious health condition as an illness or impairment that involves inpatient care or continuing treatment by a health care provider. A chronic one has three features:

• It needs treatment visits to a provider at least twice a year.
• It continues over an extended period, including recurring episodes.
• It may cause episodic rather than continuing incapacity.

The regulation gives asthma, diabetes and epilepsy as examples. The Department of Labor (DOL) certification form names asthma and migraine headaches. Headaches other than migraine ordinarily do not count. Your provider certifies the medical facts, and your employer decides whether to designate the leave as FMLA leave.

Incapacity means you cannot work, attend school or do other regular daily activities because of the condition, its treatment or recovery. Absences for a chronic condition can qualify without a provider visit during the absence, and even if they last three full days or less. The regulation's own example is asthma, including a provider's advice to stay home when the pollen count is high.

What does the provider certification (WH-380-E) ask about your episodes?

Your employer may ask for a certification from your health care provider. You have 15 calendar days from the request to return it, unless that is not practicable despite diligent, good faith effort. The DOL's form WH-380-E is optional. Employers may use their own form with the same basic information.

Section I asks for your job title, schedule and essential job functions. You or your employer may fill it in. The provider completes the rest and returns the form to you, not to the DOL. For a chronic condition, the provider gives:

• The approximate date the condition started and how long it is expected to last.
• Whether treatment visits at least twice a year are medically necessary.
• At least one essential job function you cannot perform.
• Whether intermittent absence is medically necessary, with an estimate for episodes, in question 9.

Question 9 reads: "Over the next 6 months, episodes of incapacity are estimated to occur ___ times per (day / week / month) and are likely to last approximately ___ (hours / days) per episode."

The form asks for the provider's best estimate and cautions that terms such as "unknown" or "indeterminate" may not be sufficient. The provider may, but does not have to, add symptoms or the name of the condition.

If your employer finds the form incomplete or vague, it must tell you in writing what is missing. You then have seven calendar days to fix it. Otherwise leave can be denied.

How do you give notice when an attack comes without warning?

For planned treatment, you give 30 days' notice when practicable. One notice covers planned intermittent leave, with updates if dates change.

When an attack comes without warning, you give notice as soon as practicable, generally within your employer's usual rules. Follow its call-in procedure unless something unusual stops you. If you need emergency treatment, the call-in can wait until you are stable and able to use a phone. If you cannot give notice yourself, a spouse, adult family member or other responsible person can do it for you.

Your notice needs enough information for your employer to reasonably tell whether FMLA may apply. You do not have to say "FMLA" the first time. For a condition that already has approved leave, you must refer to the qualifying reason or to FMLA leave. Calling in "sick" without more is not enough. Your employer must generally send an eligibility and rights notice within five business days of your first request.

What should an episode log contain before the doctor visit?

The provider makes the forward-looking estimate, and the form does not ask you for a log. A dated record gives you something concrete to describe at the visit. Keep it accurate and complete, including episodes on your days off.

A log that matches the form's questions holds these fields for each episode:

• The date, the start time and the end time, or the number of days. This is the "how long per episode" answer.
• What you could not do: a missed shift, a partial shift, leaving early, not being able to drive.
• Whether it fell on a scheduled work day or a day off.
• Any contact with a provider: emergency room, urgent care or a scheduled visit, with the date.
• How and when you told your employer: date, time, person and method.

At the end of each month, add a roll-up: how many episodes, the shortest, the longest and the typical length. Bring the roll-up and the raw dates. Days you stayed home ill without seeing anyone fit well in Sam's sick days.

The provider writes the form. The log is information you bring, not a certification, and it does not create an entitlement. For a wider checklist, see what to bring to a doctor visit with a chronic condition. For epilepsy, a seizure calendar with fields and a template covers what to note.

How often can your employer ask for recertification?

Generally not more often than every 30 days, and only in connection with an absence. If the certification gives a minimum duration longer than 30 days, your employer waits until it runs out. In every case your employer may ask every six months in connection with an absence. It may require a new certification each leave year.

Your employer can ask sooner in three cases. You asked for an extension. Circumstances in the earlier certification changed significantly in duration, frequency, nature or severity. Or your employer has information that casts doubt on the stated reason. In the regulation's own example, a certification said 1 to 2 days per migraine, and the last two migraines lasted four days each.

On recertification, your employer may give your provider a record of your absence pattern. It may ask whether the condition and the need for leave fit that pattern. You pay for recertification unless your employer provides otherwise.

Your employer may contact your provider only to clarify and authenticate the form, and never through your direct supervisor. You cannot be required to sign a release. If it has reason to doubt the first certification, your employer may require a second opinion at its own expense.

Can your employer count FMLA days under attendance points?

The regulation says an employer cannot count FMLA leave under a no-fault attendance policy. It cannot use FMLA leave as a negative factor in hiring, promotion or discipline either. This covers absences that are FMLA leave, which is why the certification and your notice matter.

If you think an absence was counted wrongly, the Wage and Hour Division of the DOL can answer questions at 1-866-487-9243. An employment attorney can look at your situation. HR is the first place to ask what your employer has recorded. Time limits apply: a lawsuit generally has to be filed within two years, or three for a willful violation.

What if you are not eligible?

Private employers with fewer than 50 employees are not covered by FMLA. A state family and medical leave law may cover them, so check with your state labor department.

The Americans with Disabilities Act (ADA) is separate. The Equal Employment Opportunity Commission's 2016 guidance applies to employers with 15 or more employees. It says they must consider unpaid leave as a reasonable accommodation for an employee with a disability. That holds even if you are not eligible under the employer's leave policy, unless the leave would cause undue hardship. It also says that complying with FMLA does not necessarily meet the ADA obligation.

Log episodes in Sam and bring them to your provider

Sam gives you one dated record to bring to the visit, so you do not rebuild months from memory.

• Instead of paper or a notes app: a program, such as the program for migraine, is a diary with its own doctor report, and each attack is an entry with date and time. Sam has one for epilepsy and asthma too, started after you confirm a doctor's diagnosis.
• Instead of memory at the visit: the doctor report (PDF), in English when your app is in English, covers 1, 3, 6 or 12 months or your whole record, with monthly counts.
• Instead of Apple Health alone: a new migraine or seizure entry for today gets last night's sleep and heart rate variability from Apple Health, when data exists.

Your provider completes the certification, and Sam does not produce that form.

Try Sam Health

Sam is a wellness companion, not a medical device. The app does not diagnose, treat, cure or prevent any condition or health state. Always consult qualified professionals for medical decisions.

General information, not legal advice. FMLA coverage, state and local leave laws and your employer's policies differ, and rules change. Before you apply for leave or share medical details, check with your HR department or an employment lawyer.

Related reading

• Chronic migraine: how many days count
• How to share Apple Health data with your doctor
• Sam symptom diary for symptoms outside a program
• Asthma symptoms: signs, diary and when to get help

Sources

Updated: October 2026

• U.S. Department of Labor, Wage and Hour Division: Form WH-380-E, Certification of Health Care Provider for Employee's Serious Health Condition (revised June 2020)
• U.S. Department of Labor: Fact Sheet #28, The Family and Medical Leave Act and Fact Sheet #28G, Medical Certification under the FMLA (both revised March 2025)
• U.S. Department of Labor: FMLA Leave: How to Talk to Your Employer, Family and Medical Leave Act (page last updated January 26, 2026) and FMLA forms
• U.S. Department of Labor: The Employee's Guide to the Family and Medical Leave Act (older guidance; the regulation prevails where they differ)
• 29 CFR Part 825, Legal Information Institute copy, accessed October 2026: 825.104, 825.300, 825.110, 825.113, 825.115, 825.200, 825.202, 825.205, 825.220, 825.302, 825.303, 825.305, 825.306, 825.307, 825.308
• 29 U.S.C. 2617(c), Legal Information Institute copy: Enforcement, limitation
• U.S. Department of Labor: State family and medical leave laws
• U.S. Equal Employment Opportunity Commission: Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016)