Americans with Disabilities Act and Diabetes Discrimination

[2013 Editor’s Note: The Americans with Disabilities Act and diabetes material has not been updated to reflect 2008 changes in the law. The Act was revised to provide additional protections for people with disabilities. The EEOC has not issued additional guidelines regarding the changes. As such, the following article will be updated to reflect these changes once EEOC guidance has been issued. However, the protections discussed in the article will almost assuredly be increased under the new law.]

Is diabetes affecting your job performance? Does your boss think it is? Either way, you should know that the law may protect you. The Americans with Disabilities Act (ADA) is a comprehensive law that prohibits discrimination against people with disabilities.

Who’s Protected?

The Act covers private employers with 15 or more employees. State and local government employees are covered as well. The Equal Employment Opportunity Commission (EEOC) is responsible for enforcement of the law.

Federal workers are covered under a similar act called the Rehabilitation Act. You should also be aware that there are numerous state laws protecting individuals with disabilities. These state laws often provide greater protections and cover smaller employers.

Is Diabetes a Disability?

Whether a person has a disability is made on a case by case basis. There is no simple or definitive test. However, an individual is considered to have a disability if it significantly limits one or more of an individual’s major life activity. The EEOC has issued guidelines further explaining:

Major life activities are basic activities that an average person can perform with little or no difficulty, such as eating or caring for oneself. Diabetes also is a disability when it causes side effects or complications that substantially limit a major life activity. Even if diabetes is not currently substantially limiting because it is controlled by diet, exercise, oral medication, and/or insulin, and there are no serious side effects, the condition may be a disability because it was substantially limiting in the past (i.e., before it was diagnosed and adequately treated). Finally, diabetes is a disability when it does not significantly affect a person’s everyday activities, but the employer treats the individual as if it does. For example, an employer may assume that a person is totally unable to work because he has diabetes.

Employment Application Process

Both employers and employees have certain rights during the hiring process. Initially, an employer cannot ask an applicant about their medical history, including whether they have diabetes, or whether they use insulin or other prescription medications. AFTER a job offer, the employer can ask about medical history and can require a medical exam. However, all applicants must be treated the same.

If an employer learns the applicant has diabetes, they can only ask the individual if they need a reasonable accommodation to do the job and what the accommodation is. See below for a discussion on reasonable accommodations. The employer can only withdraw the job offer if the person cannot perform the essential functions of the job, with or without reasonable accommodation, and does not pose a direct threat to himself or others (see below).

What can Happen During Employment

Generally, an employer should not ask an employee about their medical condition, unless they have a reasonable and legitimate reason. Normally, most issues evolve out of poor performance. As such, performance related issues should be treated like every other employee, unless the employee asks for a reasonable accommodation to do a particular job based on their diabetes.

If the employer also asks all employees to provide a doctor’s note for use of sick leave, then this may be permitted. However, this practice is a bit irregular, as most employers do not require this unless extended leave is required, such as under the Family and Medical Leave Act (FMLA). The other exception is if the employer has a legitimate and objective belief that an employee’s condition is causing a direct threat to himself or others.

Reasonable Accommodations – When are they Reasonable?

Reasonable accommodations can vary greatly, so long as they do not cause undue hardship to the employer. This definition is very vague and open ended. It can also be interpreted differently for different types of jobs. Nonetheless, the EEOC provides specific examples of accommodations that would probably be reasonable:

• A private Area to test blood sugar or take insulin.
• Breaks to eat, drink, and take medication and rest until blood sugar returns to normal.
• Modified work schedules or positions
• Leave to undergo treatment, training or therapy.

What is a Direct Threat?

A direct threat is one where the risk cannot be reduced or eliminated by a reasonable accommodation. The direct threat assessment must be made based on facts and objective criteria, not myth or conjecture. For example, your supervisor knows you have diabetes and sees you sweating and acting dizzy. You tell him you have low blood sugar and are feeling faint. You also happen to be controlling a large crane with other workers around. Your boss can stop you from working and require a doctor’s note clearing you to return to work.

Conclusion

Diabetes affects people differently at different times. Complications from the disease can also cause unexpected problems for both employers and employees. If a problem does occur, usually open communication can solve most problems before they become bigger problems.

However, discrimination does occur. If you feel that you have been fired, laid-off, denied a promotion or otherwise treated unfairly because you have diabetes, then you should not hesitate to speak with the EEOC. Usually, you can have an initial consultation that is completely confidential. Don’t suffer in silence, learn your rights about how the Americans with Disabilities Act and diabetes affect each other.