A recent set of circumstances by a client raised the issue as to whether or not migraine headaches are a disability under the Americans with Disabilities Act (ADA). To my surprise, and their credit, there is some credence that it might be. Let’s take a closer look.
The ADA prohibits covered employers from discriminating against job applicants and employees on the basis of a disability. A disability is “a physical or mental impairment that substantially limits one or more major life activities.”
Now, if an employee suffers from severe migraines that prohibit the employee from working, does the employee have a disability? Good question. It just depends on what “working” means. I have a good answer from a previous federal court decision…
When is working considered a “major life activity”?
In Allen v. SouthCrest Hospital, a former medical assistant claimed to suffer from migraines when she worked for SouthCrest Hospital. Those migraines were strong enough to keep her out of work from time-to-time. However, she further testified that she had only previously suffered one previous migraine in her lifetime and the migraines subsided altogether after she resigned from SouthCrest.
So, it begs the question “was she disabled?” That is to say, did Ms. Allen’s migraines — a physical impairment — substantially limit her ability to work. The court didn’t think so:
“To be disabled in the major life activity of working, an employee must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Work for a single physician hardly qualifies as a class or broad range of jobs.”
The court then emphasized that the foregoing holds true under the ADA Amendments Act, which took effect on January 1, 2009. The ADAAA broadens the scope of protection available under the ADAAA. Specifically, it enlarges the definition of “disability.” However, the ADAAA does not explicitly discuss or modify the definition of the major life activity of working. In fact, ADAAA Interpretive Guidance explains that the “broad class of job” restriction remains in place:
“Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.
Therefore, to show that a migraine interferes with the major life activity of “working”, an employee must demonstrate that she was substantially limited in performing a class of jobs or a broad range of jobs in various classes as compared to most people with comparable training, skills, and abilities.”
What happens when an employee complains about migraines?
Do you tell them that they are not disabled? Heck no. Remember, it is very possible that an employee with migraines may not be able to perform a broad range of jobs. It is also possible that an employee’s migraines, depending on their severity, may substantially impact other major life activities.
Instead, play it smart. Engage in an interactive discussion with the employee. That is, work with the employee to attempt to arrive at a reasonable accommodation that will allow the employee to perform the essential functions of the job.
Also, recognize that a migraine, if severe enough, could be a “serious health condition” and trigger the employer’s obligations under the Family and Medical Leave Act. Just be sure to request FMLA certification, because employees who claim to have “migraines,” may not necessarily have them.
For California employers (as usual), there is another consideration. Under the Fair Employment & Housing Act the guidelines are stricter than those under the ADA. Do not take a chance with any medically related issue. Engage in the interactive process and see how you, as the employer, can work with an employee that suffers from migraines.
In the situation that promoted a call from one of my clients their employee always seems to call in on a Friday or a Monday with a “migraine.” One does have to wonder if the employee is being truthful or just using her migraines as an excuse! Any comments on this? You know how to reach me!