Q: We have an employee who suffers from migraines and has been taking a lot of time off—especially on Mondays, our busiest day—creating a significant strain on her team and decreasing morale. Could this be considered an undue hardship under the Americans with Disabilities Act (ADA)?
Accommodating an employee with migraines under these circumstances may be considered an undue hardship if certain factors are met. Under the ADA, an employer discriminates against an employee with a qualifying disability—which can include physical conditions like migraines—by failing to implement reasonable accommodations unless the employer can show it would impose an undue hardship on the business.
Primarily, a reasonable accommodation should enable an employee to perform the essential functions of their job by accommodating their physical or mental limitations. At the same time, the accommodation must be feasible for the employer to implement—an employer is not required to agree to the specific accommodations requested by the employee. Thus, employers are required to go through an interactive process with employees to identify a reasonable accommodation, which in this case may look like a modified work environment or work schedule. In most circumstances, however, the parties should be able to identify an accommodation.
In some cases, the only feasible accommodation may still cause an undue hardship for the employer’s business. “Undue hardship” generally refers to accommodations that would result in significant difficulty or expense for the employer. In making this determination, courts weigh several factors including, but not limited to: (1) the nature and cost of the accommodation; (2) the overall financial and labor resources of the covered entity or facilities involved in the accommodation; (3) the type of operation(s) and size of the business of the covered entity; and (4) the overall impact or administrative burden and complexity of implementing the accommodation.
In this case, if missing work—especially on Mondays—undermines the employee’s ability to perform the essential functions of her job, then it may not be a reasonable accommodation for her to miss work under these circumstances. Weighing the undue hardship factors, however, is necessarily a fact-intensive exercise, so whether her accommodation for migraines causes an undue hardship is highly dependent on the employer’s unique circumstances. Notably, the Equal Employment Opportunity Commission (EEOC) has stated that an employer cannot establish an undue hardship solely on the basis of the accommodation negatively affecting the morale of their employees. Facts beyond stressed coworkers and declining morale will need to be considered.
Given the factors required to show an undue hardship, employers should seek assistance from counsel to determine whether a requested accommodation is reasonable and, if so, whether implementing that accommodation could be considered an undue hardship under the ADA.
Mitchell Lange is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at 208-576-3214 or mlange@parsonsbehle.com.