An employee’s migraines often force her to take time off. She’s now pushing for a promotion but we hesitate to give it to her. She’s a good employee, but managers can’t miss so many days. Are we setting ourselves up for an ADA lawsuit?
Employees qualify for ADA protection if they can perform the essential – as opposed to marginal or incidental – functions of the position with or without reasonable accommodation. Your concern is that for a manager, there’s nothing marginal or incidental about being present and at the top of your game. A 2003 10th Circuit Court of Appeals case (Croy v. Cobe Laboratories) suggests your employee would probably not qualify as disabled. In that case, a lab worker with multiple sclerosis sued claiming she was denied a promotion because of her MS. However, the court ruled that her symptoms – fatigue, dizziness and headaches – didn’t prevent her from doing her job. She received good performance reviews, which reinforced the company’s position that she was a great employee, at least when she was there. So, the court said, she wasn’t disabled and couldn’t blame her lack of promotion on discrimination.