Article

Migraines at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with migraines, including coverage based on neurological and brain functions, attacks that come and go, why medication does not erase coverage, lighting, screen, noise, and scent triggers, unscheduled leave and attendance policies, working from home, medical questions and confidentiality, FMLA intermittent leave, retaliation, and deadlines.

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How Migraines Can Qualify as a Disability

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees for 20 or more weeks in the current or preceding calendar year and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. MedlinePlus describes migraines as a recurring type of headache that causes moderate to severe throbbing or pulsing pain, often on one side of the head, and says other symptoms can include nausea, weakness, and sensitivity to light and sound. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities include seeing, concentrating, thinking, and working, as well as the operation of major bodily functions, and the regulation expressly lists neurological and brain functions. Coverage is still decided individually rather than by diagnosis alone, but the ADA's definition of disability is meant to be construed broadly, and a person with a record of such an impairment or who is regarded as having one can also be protected under 29 CFR 1630.2(k) and (l).

Attacks That Come and Go, and Medication

MedlinePlus describes migraines as a recurring type of headache, so symptoms often come in attacks rather than all the time. Under 29 CFR 1630.2(j)(1)(vii), an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active, so an employer cannot deny coverage simply because you are fine between attacks. Under 42 U.S.C. Section 12102(4)(E) and 29 CFR 1630.2(j)(1)(vi) and (j)(5), substantial limitation is judged without regard to the helpful effects of mitigating measures such as medication, and 1630.2(j)(4)(ii) says the negative side effects of medication or the burdens of following a treatment regimen may be considered. A person covered only because the employer regards them as impaired is not entitled to reasonable accommodation under 1630.2(o)(4).

Lighting, Screens, Noise, and Scent Triggers

MedlinePlus lists bright or flashing lights, loud noises, strong smells, stress, too much or not enough sleep, and skipped meals among the factors that can trigger a migraine, and says triggers vary from person to person. Under 42 U.S.C. Section 12111(9), reasonable accommodation may include making facilities readily accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, and acquiring or modifying equipment or devices. Depending on your triggers, that might mean changing or dimming overhead lighting, a screen filter or display adjustment, a quieter workspace, a scent-free work area, or breaks to eat or take medication, as long as the change does not cause undue hardship, which 29 CFR 1630.2(p) defines as significant difficulty or expense. If more than one accommodation would work, the EEOC says your preference should be given primary consideration, but the employer has the ultimate discretion to choose among effective options.

Unscheduled Leave, Attendance Policies, and Working From Home

The EEOC's reasonable accommodation guidance says permitting accrued paid leave or unpaid leave is a form of reasonable accommodation when needed because of a disability, including to recuperate from an episodic manifestation of the disability. It also says granting time off or an adjusted schedule may involve modifying leave or attendance procedures, and gives the example that it would be a reasonable accommodation to modify a policy requiring vacation to be scheduled in advance so an employee can use accrued vacation on an unscheduled basis because of disability-related medical problems, barring undue hardship. On working from home, the EEOC says an employer must modify its policy on where work is performed if that change is needed as a reasonable accommodation, but only if it would be effective and would not cause undue hardship; whether it is effective depends on whether the essential functions of the job can be performed at home. The EEOC also says an employer should act promptly on a request and that unnecessary delays can violate the ADA.

Medical Questions and Confidentiality

Under 42 U.S.C. Section 12112(d)(4)(A), an employer may not require a medical examination or ask a current employee whether they have a disability or about its nature or severity unless the examination or inquiry is job-related and consistent with business necessity, although it may ask about your ability to perform job-related functions. When you request an accommodation and the need is not obvious, an employer may ask for reasonable documentation about the disability and the functional limitations that make the accommodation necessary. Under Section 12112(d)(3) and (4), medical information the employer obtains must be kept on separate forms, in separate medical files, and treated as confidential, with limited exceptions such as informing supervisors about necessary work restrictions and accommodations.

FMLA Intermittent Leave for Migraines

Under the Family and Medical Leave Act, 29 CFR 825.113 defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Under 29 CFR 825.115(c), continuing treatment includes a chronic condition that requires periodic visits for treatment at least twice a year, continues over an extended period including recurring episodes of a single underlying condition, and may cause episodic rather than continuing incapacity. Under 29 CFR 825.202, FMLA leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned or unanticipated medical treatment or for recovery from treatment or from the condition. Under 29 CFR 825.110, an eligible employee has worked for the employer for at least 12 months, has at least 1,250 hours of service in the 12 months before leave starts, and works at a location where the employer has at least 50 employees within 75 miles.

Retaliation and Deadlines

Under 42 U.S.C. Section 12203, an employer may not retaliate against you for opposing disability discrimination or taking part in an ADA charge or investigation, or coerce, intimidate, threaten, or interfere with you for exercising ADA rights. Keep a written record of each accommodation or leave request, every response, and any attendance points, discipline, schedule cut, or termination that follows. A charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination; federal employees generally must contact an agency EEO counselor within 45 days.

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