Know the Law: Employees, Migraines and Work Attendance

May 22, 2017

Published in the Union Leader (5/22/2017)

Q. I am the Plant Manager for a manufacturing company in the north country.  We have a difficult time finding employees who are qualified to work for us.  I have a very skilled employee who works as a lead in a manufacturing cell, but lately she has been calling out sick a lot without  warning due to migraines.  This impacts everyone with whom she works.  I really would like to keep her at the company, but I need help in managing her absences.

A. One of the most challenging areas for employers is the balancing act which occurs between managing employee productivity and attendance while taking care not to violate employee’s rights to time off under and job protection under the Family and Medical Leave (“FMLA”) and Americans with Disabilities Act (“ADA”).  Intermittent and unforeseeable absences are at the top of the list, and one particularly challenging issue is migraine headaches. Migraines are usually 1) unpredictable and 2) debilitating, and they often result in employees calling out? at the last minute, leaving work midday or being out for days at a time without notice.

Migraines may very well qualify as 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.  The Equal Employment Opportunity Commission (“EEOC”) has long taken the position that an employer must provide the employee with the necessary time off as a reasonable accommodation under the ADA as long as doing so does not unduly burden the business.

Your best approach now is to engage in what is called an “interactive process” with the employee in order to determine the best approach to manage her time off.  Is there a “floater” in her area who can cover her for short term absences and not disrupt the flow of work for her teammates?  If she is seeking treatment which might alleviate her condition in the future, can you consider a temporary reassignment to a job which does not have others depending on her presence?  You will also be entitled to medical information confirming what she needs for accommodation.

You should be very cautious about terminating or disciplining an employee who suffers from ongoing medical issues without careful analysis and consultation with counsel. 

Charla Bizios Stevens can be reached at (603) 628-1363 or and followed on Twitter @charlastevens. She also frequently contributes to