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 employer had refused to put in a perfume-free workplace policy as an accommodation to her disability. Perfume is one of many Migraine triggers we may encounter in the workplace, and one of many Migraineurs can request an accommodation at work to avoid. In this week's article I want to give you guidance on your rights under the ADA, and the kinds of accommodations you might request.
*** This sharepost is legal education, not legal advice. No attorney-client relationship is created. ***
The ADA was passed in 1990 to prevent discrimination against disabled persons in employment, transportation, and public accommodation. I will only be discussing the employment aspect of the law today.
The relevant part of the ADA provides that no "covered entity" shall discriminate against a "qualified individual" with a "known disability," and that discrimination includes not making "reasonable accommodations" to the known limitations of the disabled applicant or employee, unless the employer can show that the accommodation would impose an "undue hardship" on the employer. 42 U.S. Code § 12112.
Let's take the highlighted terms one by one:
- A covered entity is an employer of 15 employees or more (and all governmental employers), so if you work for a smaller private employer, the ADA may not apply, unless you are in a state or municipality which has enacted a similar law or extended it to smaller employers.
- A qualified individual is someone otherwise qualified to do the job - you don't get preferential treatment.
- A known disability means the employer has to know about it. If they don't know you have it, they don't have to accommodate it! This is important.
- Reasonable accommodations will be the main focus of this article - they can include changes of shift or work area, flex-time, physical changes to the work-space, but they must be "reasonable." If you cannot perform a basic essential function of your job due to your Migraines, there may be no way to reasonably accommodate that.
- Undue hardship - see "reasonable." If you are asking for accommodations which would be excessively expensive, or make major changes in your employer's entire business, your employer could certainly claim undue hardship.
Is Migraine a disability under the ADA?
Absolutely. The ADA does not contain a list of disabilities, but protects persons with any "mental or physical impairment that substantially limits one or more major life activities." The Federal courts have found over and over again that Migraine disease can meet this criteria if and when it impairs you from working, though many employers have tried to argue that it does not. Migraineurs' case is even stronger since the ADA Amendments Act of 2008 made it clear that episodic disorders are covered by the Act.