Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)
Photo: Gonzalo Malpartida via Flickr (CC by SA 2.0)

One of the most problematic areas for employers is the balancing act which occurs between managing employee productivity and attendance while taking care not to tread on entitlement to Family and Medical Leave (“FMLA”) and Americans with Disabilities Act (“ADA”) protections.  Intermittent and unforeseeable absences are at the top of the list of challenges, and one particularly challenging issue is migraine headaches.

Individuals who suffer from migraines know they are usually 1) unpredictable and 2) debilitating.  They often result in employees calling in at the last minute, leaving work midday or being out for days at a time without notice.

Existing case law and guidance from the EEOC has been clear that migraines may indeed be a disability under the ADA.  The definition of disability is broad and centers on whether a medical condition “substantially limits” a “major life activity.”   In a recent decision, Bethscheider  v. Westar Energy, the United States District Court for the District of Kansas confirmed that an  employer must  accommodate very short term absences due to migraines and it did so on some very interesting facts.

The case involved an employee terminated for excessive absenteeism; four of eleven absences in a five month period were attributable to migraines.  The headaches typically lasted less than one day, and the employee made up the absences, usually within the same week.  The employer argued that no ADA accommodation was required and filed a motion to dismiss.

The court denied the motion, finding that even headaches which happened only occasionally, did substantially impact plaintiff’s major life activity of working.  It determined that the plaintiff had set forth sufficient facts to establish a claim which should move forward in the litigation process.  The court did caution that whether migraines are a qualifying disability will depend on the facts of each case.

Employers should be very cautious about terminating or disciplining employees who suffer from ongoing medical issues without careful analysis and consultation with counsel.  Many conditions, even those which impact individuals intermittently, can be considered disabilities under the ADA or serious health conditions under the FMLA.  Between these federal laws and various state and municipal laws guaranteeing time off due to illness, employers can be caught in a trap by discharging employees first and asking questions later.