Q&A: Accommodating employees with menstrual migraines

What are an employer’s obligations when an employee has asked to be able to miss work 1 to 3 times a month for migraines related to menstruation?

This employee could be entitled to a reasonable accommodation (which may include leave) under both the federal Americans with Disabilities Act (ADA) and the federal Pregnant Workers Fairness Act (PWFA).

Americans with Disabilities Act

Under the ADA, a “disability” is defined as a physical or mental impairment that substantially limits one or more of the individual’s major life activities. A mitigating measure (i.e., medication or a device that improves an impairment) cannot be considered when determining whether an impairment is a disability. The definition of a disability also includes having a record of such impairment or being regarded as having such an impairment (42 USC 12102(3)). Under the ADA, an impairment that is episodic or in remission constitutes a disability if it would substantially limit a major life activity when active (42 USC 12102(4)(C)).

The ADA requires that employers provide reasonable accommodation for the known disability of a qualified individual, unless doing so would impose an undue hardship on the operation of the employer’s business (42 USC 12102 et seq.) Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Reasonable accommodations may include (note this is a nonexclusive list):

1. Making existing facilities used by employees readily accessible to and usable by employees with disabilities;
2. Job restructuring;
3. Part-time or modified work schedules and leaves of absence;
4. Acquisition or modifications of equipment or devices;
5. Appropriate adjustment or modifications of examinations, training materials, or policies;
6. The provision of qualified readers or interpreters; and
7. Reassignment to a vacant position. See 29 C.F.R. §1630.2(o)(2).

While the ADA is not a leave law, a leave of absence may be an accommodation if taking the leave allows the employee to seek treatment and return to work able to perform the essential functions of the job. See 42 U.S.C. §12111(9)(B); EEOC Technical Assistance Manual, 7.10. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation (29 CFR 1630.2(o)).

According to the EEOC, an employer does not have to provide paid leave beyond what is provided to similarly situated employees. However, employers should allow an employee with a disability to exhaust accrued paid leave first and then provide unpaid leave (EEOC Technical Assistance Manual).  The EEOC has been focusing its enforcement efforts in this area and has issued informal guidance for employers regarding employer-provided leave.

Once an employee has requested an accommodation, the employer generally should determine whether the employee has a disability protected by the ADA. The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations indicates that medical documentation is sufficient if it:

• Describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and
• Substantiates why the requested reasonable accommodation is needed.

To determine the appropriate accommodation for a disabled employee, the EEOC indicates that it “may be necessary” for an employer to engage in a flexible, interactive process that involves the employee. The process should identify both the precise limitations resulting from the disability and the potential reasonable accommodations that could overcome those limitations. See 29 C.F.R. §1630.2(o)(3); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act.

Pregnant Workers Fairness Act

Under the PWFA,  the phrase “pregnancy, childbirth, or related medical conditions” is defined broadly to include current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions. Unlike the ADA, an employee doesn’t have to show a limitation meets a specific level of severity to be covered under the PWFA.

The PWFA borrows definitions from the Americans with Disabilities Act (ADA), including the terms “essential function,” “reasonable accommodation,” and “undue hardship,” as well as adopting the same interactive process. Employers are required to provide reasonable accommodation to individuals with known disabilities or pregnancy-related conditions. Generally, this includes modifying work schedules, job restructuring, or modifying the facility or equipment, so long as it does not constitute an undue hardship on the business.

The PWFA provides that employers must not:

• Fail to make a reasonable accommodation for the known limitations of an employee or applicant, unless the accommodation would cause an undue hardship;
• Require an employee to accept an accommodation other than a reasonable accommodation arrived at through the interactive process;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Punish or retaliate against an employee or applicant for requesting or using a reasonable accommodation for a known limitation under the PWFA, reporting or opposing unlawful discrimination under the PWFA, or participating in a PWFA proceeding (such as an investigation);
• Coerce individuals who are exercising their rights or helping others exercise their rights under the PWFA.

See EEOC’s What You Should Know About the Pregnant Workers Fairness Act.

The EEOC also provides the following examples of possible reasonable accommodations under the PWFA:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
• Changing food or drink policies to allow for a water bottle or food;
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to do work while standing;
• Changing a uniform or dress code or providing safety equipment that fits;
• Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
• Telework;
• Temporary reassignment;
• Temporary suspension of one or more essential functions of a job;
• Leave for health care appointments;
• Light duty or help with lifting or other manual labor; or
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

The EEOC has indicated that if the employer is allowed to obtain medical documentation, such documentation is limited that which:

• Confirms the physical or mental condition. This means providing a simple statement of the physical or mental condition (e.g., back injury, swollen ankles, need to avoid certain chemicals, lifting restriction, need for rest, vomiting, need to attend health care appointments). This can be a modest or minor impediment or problem and does not need to be a medical diagnosis;
• Confirms that the physical or mental condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions. Pregnancy, childbirth, or related medical conditions do not have to be the sole, the original, or a substantial cause of the physical or mental condition); and
• Describes the adjustment or change at work that is needed due to the limitation (for example, no lifting more than 20 pounds for 3 months, the approximate number and frequency of health care appointments, the estimated time off for recovery, additional safety gear, work functions that should be suspended and for how long, or a later start time).

Under the federal Pregnancy Discrimination Act (PDA), employers may not discriminate against an employee based on current pregnancy, past pregnancy, and potential pregnancy. The PDA covers all aspects of employment, including firing, hiring, promotions, and fringe benefits (such as leave).

In the situation you have presented, your employee’s chronic, frequent, and unpredictable absences are preventing her from performing the essential functions of her job. If this employee is fact disabled as defined by the ADA, the question then becomes whether there is a reasonable accommodation (that would not impose an undue hardship to the employer) that could be made to allow the employee to perform those essential functions in spite of her disability.

In determining whether an accommodation would impose an undue hardship on the employer, the EEOC generally considers several factors, including the nature and net cost of the accommodation needed, overall financial resources of the employer, the number of persons employed by the employer, and the impact of the accommodation upon operations, including the impact on the ability of other employees to perform their duties and the impact on the employer to conduct business. See 42 U.S.C. §12111(10)(B); 29 C.F.R. §1630.2(p).

Similarly, even if this employee’s condition does not constitute a disability under the ADA, she may nevertheless be entitled to a reasonable accommodation under the PWFA, absent undue hardship.

The HR Hotline does not provide legal advice. Making determinations regarding reasonable accommodations and undue hardship under the ADA and the PWFA requires an assessment of the specific facts in a particular situation. As the PWFA regulations were effective less than a year ago, there is also limited guidance/interpretations pertaining to the law. Because there are complex issues involved in such scenarios, we recommend consulting with legal counsel who will be able to review the specific facts and circumstances and provide legal advice accordingly.

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