Working with Migraines: Rights under the Americans with Disabilities Act

Megan Oltman is living a purposeful life with Migraine, and helping others do the same. Living With It Migraine Management Coach, Lawyer, Writer Visit me at http://www.freemybrain.com I coach Migraine sufferers... Send Message Subscribe: Megan Oltman

Monday, May 04, 2009
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How can you keep working with Migraines? What does your employer have to do to help? Last week we talked about McBride v. City of Detroit, where a chemically sensitive employee made out enough of a case under the Americans with Disabilities Act (ADA) to withstand a motion to dismiss. Her employ...

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Untitled Comment
MigrainePuppet
Saturday, May 09, 2009 at 09:06 AM

Thank you for writing about our working rights under the ADA. My employer does know about my Migraines and has already made some workplace accommodations for me.

If we let our employer know we are missing work due to Migraine, do you know if we would we have more protection if we filed for and used FMLA for our absences? I find I am hesitant to call out of work at all even when I know I should not be there which is causing me to struggle more at work right now.

However, I don't think any protections would help in my current work scenario where the CEO of my company recently sent out a letter to all employees basically letting us know that there will be more layoffs coming soon. It made it sound like they would and could get rid of us for any reason at all.

re: Untitled Comment
Megan Oltman
Saturday, May 09, 2009 at 11:14 AM

Puppet, as I mentioned, ADA doesn't give us an automatic right to more paid or unpaid time off than anyone else, although some employers are willing to provide that as an accommodation. FMLA on the other hand does give you the right to unpaid leave. I will be dealing with FMLA in a separate article.

Even in a time of economic uncertainty, if your employer is laying people off, they cannot lay off people with disabilities preferentiallly, as long as you are following rules and using your sick leave within the company rules. Of course, it might be difficult to prove if they lay a number of people off and they can show they had to do it due to business necessity.

Accommodating Leave
Anonymous
Wednesday, May 13, 2009 at 09:55 AM

We have an employee who has exhausted her FMLA leave for her migraine condition. We have tried to continue to allow her to miss work for her migraines as an accommodation0; however, she is continuing to miss anywhere from 2-5 days per week due to migraines. We have accommodated her in many ways, including reduced lighting, providing her with a private, secluded area to work in a low to no-traffic area, etc. We also allow her time at work to administer migraine medications if/when she feels a migraine coming on. Her position is a receptionist, so it is an essential function of her job that she be at work. I know that she is protected by ADA, and we feel that we have accommodated her to the best of our ability. Can we legally terminate the employee, or what do you recommend?

re: Accommodating Leave
Megan Oltman
Wednesday, May 13, 2009 at 10:15 AM

Dear Anonymous - I cannot give legal advice or recommendations on this web site. It certainly sounds like you have been very accommodating to your employee. I suggest that you consult an attorney in your state as to the best course of action to take at this point.

Thank you!
Issa
Monday, May 25, 2009 at 02:26 PM

My workplace instituted a rule regarding absenteeism. I was by no means abusing benefit time, but it has made me terrified to call off sick, even when I know I need to! I'm going to compose a letter to both my HR department and to my union rep, with specific details about the nature of my illness. Many thanks for this information.