Determining What Is and Isn't a Disability One of your employees has migraines. Is this covered by the Americans with Disabilities Act?

Q: Is an employee who suffers from migraines entitled to protection under the ADA?

A: The Americans with Disabilities Act (ADA) prohibits employment discrimination "against a qualified individual with a disability because of the disability of such individual." To be protected under the ADA, an individual must prove that she is "disabled" and "qualified" to perform the essential functions of the job either with or without a reasonable accommodation. Under the ADA, a disability is defined as "a physical or mental impairment that substantially limits one or more of the life activities of [an] individual; a record of such an impairment; or being regarded as having such an impairment."

Migraine headaches do not necessarily constitute a disability. But, in certain cases, migraine headaches can be found to substantially limit major life activities and therefore can constitute a disability under the ADA. The weight of authority suggests that a person with migraine headaches is likely to be found to have a disability. However, the severity of the migraines and the impact they have on a person can vary significantly. Thus, determining whether a person with migraines has a disability is a fact-intensive inquiry with no categorical answer.

When an individual with migraines is determined to have a disability, to be protected under the ADA she must also demonstrate that she is a "qualified individual." Under the ADA, employees who are disabled cannot prove that they can adequately perform the essential functions of a job without a showing that they can maintain a regular and dependable level of attendance at the job. Indeed, courts have held that regular attendance is an essential function of virtually all jobs. Thus, courts have found in some cases that a high level of unpredictable absenteeism can prevent an employee from performing the essential functions of a job at a satisfactory level of production.

In considering whether an employee is a qualified individual, courts must also consider whether there was any reasonable accommodation that the employer could have made that would have enabled the employee to perform her job satisfactorily. Examples of reasonable accommodations include providing part-time or modified work schedules, reassigning an employee to a vacant position, and in some cases providing leaves and other similar accommodations. An employer, however, is not required to make an accommodation that would impose an undue hardship on the operation of an employer's business. Moreover, an employee cannot make her employer provide a specific accommodation if another reasonable accommodation is instead provided. In the case of migraines, allowing an employee to take paid or unpaid leave may be considered a reasonable accommodation in some situations, but it may constitute an undue hardship in others.

To summarize, migraines can constitute a disability under the ADA, depending on an individual's particular symptoms and circumstances. However, even if an individual's migraines do rise to the level of a disability, that employee still must be qualified to perform the essential functions of the job either with or without a reasonable accommodation. Therefore, when faced with this issue, an employer will have to make a case-by-case determination, based on the facts of the particular situation, as to whether or not it believes an employee is disabled, and also whether there is any reasonable accommodation for that employee.

Leigh Anne Ciccarelli contributed to this article.

Note: The information in this column is provided by the author, not Entrepreneur.com. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.

Larry Rosenfeld is co-chair of the national labor and employment practice of the law firm Greenberg Traurig LLP. A frequent writer and lecturer on employment law topics, Rosenfeld is experienced in the areas of federal laws pertaining to employment issues, EEOC, ADA, termination matters, employment liability and the Fair Labor Standards Act.