Working with Migraines: Rights under the Americans with Disabilities Act

By 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 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.

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Comments (12) | Add comment

MigrainePuppet

5/ 9/09 9:06am

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.

Megan Oltman

5/ 9/09 11:14am

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.

Anonymous

5/13/09 9:55am

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?

Megan Oltman

5/13/09 10:15am

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.

Issa

5/25/09 2:26pm

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.

2/22/10 2:44pm

I took two weeks off last year when my migrains were very bad and had become a daily occurance -- i was still coming into work every day, but the neurologist told me to take time off to de-stress and get controll of the migraines. I took a two week leave of absence -- my review for the year - even though the year was overall very successful and I didn't take any vacation time, was that I needed improvement and I didn't get a raise for the year. Every year for the 5 years before that I was always given a very positive review. What changed? I was still doing the same job - even better, except for those two weeks out. Sure, you can share that you have migraines, but be careful if you ask for accomodations.

Pauline

11/30/09 3:54pm

Dear Megan,

A big thank you for the very informative posts. They have been very educational.

I am an "exprienced" migaineur (for the last 10 years), and I have managed to remian mostly functional and seldom had to miss work due to migraines, never requested an accommodation or went on a leave because of migraines. However, the migraines have become more frequent now, and one having a slightly changed schedule (my job allows for some flexibility) would help; the total number of hours would not be reduced and my duties would be still performed in full. I am uneasy about disclosing the actual diagnosis to my employer, in part because I don't think they need to know what it actually is and in part because I have many reasons to believe that they will not be understanding and may use it against me (I know that it is illegal, but there are plenty of ways of making my life harder, and litigation is not always a good option). In short, can I request an accommodation without disclosing the "migraine" diagnosis and ask the doctor to provide a general certification of a condition?

Thank you!

Megan Oltman

3/ 6/10 7:16pm

Pauline - I'm sorry it's taken me so long to reply - I missed your comment! I guess you don't have to share the actual diagnosis, but that might make it harder - your employer is going to have to be convinced that your request for accommodations is legitimate, and a common way to do that would be to get a letter from your doctor explaining what you need and why. Even if you get accommodations without documentation (the law doesn't require documentation, but your employer can) I would think that knowing what the diagnosis is and sharing what things trigger you might make them more likely to understand. I don't know that there is any one right answer here.

- Megan

Annie

2/23/10 8:34pm

I wish I had known about this article when I was working with my previous employer, even though this article has been published almost a year ago now I am aware of what to do. At my last job, my boss called my unreliable due to my migraines, and one of my team members through hear say was trying to get me fired for them. I'm glad I left. Thank you for this information.

Bram_33

1/ 4/11 5:33pm

I've had Migraines for 8 years now and the episodes have went from 2 a week to 5 a week. My employer has been informed over the last 5 weeks, that I need to work in cool conditions to prevent triggers. They have not complied with this as of yet. They do have a place in cold storage, where I worked for over 2 1/2 years, but refuse to place me in cold storage. Is asking to be in the cold asking to much if there is a opening?

MigrainesinLALA

3/17/11 4:43am

Hi,

Thanks for the great article very informative. My last migraine episode lasted nearly 3 weeks(a first time for me) including one visit to the ER for stronger meds.

My question has to do with the employer providing the accomodation of working from home during migraine episodes. I work for a consulting firm with folks all over the map but not necessarily offices all over the map with good flexibility of working remotely given the nature of our business. However they recently opened an almost always empty office for 4 of us, prior to this they requested I work from home which I did for a year. Certain folks with a higher title within the organization are aware of my condition, but not HR. Should I let my employer know the increasingly chronic nature of my condition and request the accomodation of working from home when the migraine strikes? My work doesn't at all suffer as I make up my billability at odd hours and always before any deadlines. I can manage through the pain better when I reduce the triggers by being home. They typically boast to all new employees of the flexibility of being able to work from home entirely if they wish but the institution of this office now seems contrary and I worry they will discriminate against me because of the migraines for choosing to be home more during an episode than in the actual office. Thoughts?

Brittany

9/15/11 8:54pm

Hi Megan,

I certainly wish I would have read this post a lot earlier! I had no idea about migraines being covered under the ADA. I have been suffering from terrible migraines for the past 3 years-they just came out of no where. I recently got a temporary position (in CT) covering for someone who was out on a disabilitiy. I was actually told that I would be hired permanently after the temp contract expired. Well, this place was filled with flourescent lighting and day after day I had started to get headaches. One morning I woke up with a migraine and I called in. The supervisor was fine with it so I took off that day. I continued to get headaches and started to wear my sunglasses in the office. We had the huge hurricane up here (Irene) so the offices were closed for a couple of days and thank God because barometric pressure is NOT my friend. Returning to work the next day, I went in late because I had a massive migraine. Almost like a mini stroke. Seeing lights all of that. So I told my employer that the following day, I would have to go in for an MRI but I would be coming in after the procedure. They said they were fine with that as well. So a week later, after my neurologist upped my dose of medication again, I told my employer that I was going to be in half hour late because I had a migraine earlier that morning and could not function until the side effects of my onset medication wore off. They told to not return to work. Actually! They said, "It has nothing to do with your work, they love what you're doing in the office, they see your migraine illness as being unreliable. The person you were filling in for had a medical issue, the one out on disability, and was out sick at times and they are afraid that will happen again so they don't want you back." Yeah...not too smart. You think anything can be done about this? I have e-mails, etc. Thanks so much for your help.

Working with Migraines: Rights under the Americans with Disabilities Act

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