Diabetes and Your Rights on the Job – Part 2

Part 2 of 2 parts

#3. Do I Have a Right to Medical Leave to Take Care of My Diabetes?

The answer is a qualified 'Yes.' The Family and Medical Leave Act (FMLA) requires

most private employers with more than 50 employees and most government employers to provide up to 12 weeks of leave per year because of the worker's health needs, or an immediate family member's, serious health condition. This time does not need to be taken all at once, but can be taken in small blocks of time. This will allow for short-term problems caused by managing blood glucose levels or for doctor's appointments.

#4. Can My Employer Require Me to Undergo a Medical Examination Because of My Diabetes?

Yes, under certain situations, employers are permitted to inquire about an employee’s disability and can require that the worker undergo a medical examination. Generally, these situations are limited to employment physicals, requests for reasonable accommodation, and when a worker returns to work following an extended medical leave. This also applies when a worker has experienced a problem on the job, like severe hypoglycemia, that raises safety issues for the employer.

#5. Can I be Disciplined for Having Diabetes?

Yes, if your employer has workplace conduct rules that are applied uniformly to all employees, you can be disciplined if your conduct violates these rules. This applies even if that conduct was because of diabetes, for example, your behavior was caused by hypoglycemia. This is one reason secrecy of diabetes is not a good policy.

#6. Can I Be Fired Because My Employer Believes I am a Safety Risk?

This and the following are probably the most contentious problems for a person with diabetes. “A common problem in diabetes discrimination cases is that the employer claims that the person with diabetes creates a safety risk to other employees.

Sometimes this is due to the worker experiencing hypoglycemia on the job – but sometimes it is based in the employer’s ignorance about diabetes. You may need to dispel myths and stereotypes about diabetes and educate your employer or a court about your ability to be a safe and responsible worker.”

#7. What are My Rights if I am Terminated From My Job Because of my Diabetes?

“If you are fired from your job because of your diabetes, the first thing to do is to contact the American Diabetes Association so they can help you understand your rights and the legal processes available to you.

You have a right to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or your state fair employment agency.

You also may have other options available, depending on the situation, such as filing a union grievance or negotiating a return to work with your employer.”

Just because you manage your diabetes extremely well does not mean that you might not face the questions above. It can take only one case of hypoglycemia to cause an employer to take action against you. This is true especially for employers that do not understand diabetes. The more dangerous the job is that you have, the more important it is that you discuss diabetes with your employer. Some employers are often able to move you to jobs that are less dangerous. If you are a valued employee, the employer may want to keep you and be very willing to move you.

Just remember that not all employers are sympathetic and will look for any excuse to terminate an employee. This is when the American Diabetes Association may be a valued ally.

Diabetes and Your Rights on the Job – Part 1

Part 1 of 2 parts

If you have diabetes, do you consider yourself having a disability? Many people with diabetes do not and that is part of the reason for secrecy among many people with type 2 diabetes. Many are horrified when told they have a disability. Well, suck it up; the American Diabetes Association (ADA) says you have a disability.

As a person with diabetes, you are a person with a disability and as such, you are protected from discrimination. This means that your employer -

1. Cannot fail to hire or promote you because of your diabetes.
2. Cannot terminate you because of your diabetes – unless you post a direct threat to yourself or others – think hypoglycemia.
3. Must provide you with reasonable accommodations that help you perform the necessary functions of your job.
4. Must not discriminate in employer provided health insurance

For more information, read this PDFfile from the ADA. If is well written and a bit legalese, though understandable. This ADA article has many links to specific definitions and discussions affecting a person with diabetes. I may cover some of them. If you are a person that has repeat episodes of hypoglycemia, there are several concerns about employment – more on this below.

There are both federal and state laws that offer protection from workplace discrimination.

#1. The Americans with Disabilities Act applies to private employers, labor unions, and employment agencies with 15 or more employees, and to state and local government.

#2. The Rehabilitation Act of 1973 generally covers employees who work for the executive branch of the federal government, or for any employer that receives federal money.

#3. The Congressional Accountability Act covers employees of Congress and most legislative branch agencies.

#4. All states have their own anti-discrimination laws and agencies responsible for enforcing those laws. Some state anti-discrimination laws provide more comprehensive protection than do the federal laws.

The cause for concern by many people with diabetes is they don't want to be classified as a person with a disability. Secrecy then becomes a problem, as many do not want to inform their employer that they have diabetes. I would urge everyone that has diabetes to read the two links above

Then for those interested in reading the Americans with Disabilities Act (1990) click on the link above. I would strongly urge you to read the September 25, 2008 Americans with Disabilities Act Amendments Act (ADAAA) at this link. This is hyped by the American Diabetes Association, but helps explain the importance of the ADAAA. It has some important links to follow.

This is one of the disadvantages of having a few of the members of our diabetes support group visit while I am in the middle of a blog. They wanted to make this part of our next meeting and Tim and I had to say that stress was the topic for the meeting and by putting this out before our meeting was not a good idea. Posting this after our meeting and giving them the links will help people be prepared for the next meeting. After some grumbling, they agreed that stress was what everyone was aware of and that if this could be our topic for March.

Important points to remember -

#1. What is a 'Qualified Person with a Disability?'

Before the Amendments Act, the Supreme Court and most lower courts often disallowed people who managed their diabetes extremely well to claim discrimination under the Americans with Disabilities Act. The 2008 Amendments Act clarified this and some other problems needing clarification.

This discussion will be quoted.

“In order to be protected by federal anti-discrimination laws, a worker must show that he or she is a "qualified individual with a disability."

The first step is establishing that the worker has a disability, "a record of" a disability, or is "regarded as having" a disability.

A disability is defined in these laws as a mental or physical impairment that substantially limits one or more major life activities – such as eating, walking, seeing, or caring for oneself, or a major bodily function such as endocrine function.

In making this determination, you are viewed as you would be without the help of mitigating measures such as insulin.

In addition, you must establish that you are qualified for the job in question.

A qualified worker is one who satisfies the skill, experience, education, and other job-related requirements of the position held or desired, and who—if given reasonable accommodation—can perform the essential functions of that position.”

#2. What are 'Reasonable Accommodations?'

A reasonable person would think this would be easy, but this was part of the problems thwarted by the Supreme Court. Generally, accommodations for people with diabetes are easy and inexpensive; however, the courts until the Amendments Act have mostly ruled against people with diabetes.

Employers are required to make a reasonable accommodation if requested by an employee, unless the accommodation would cause an 'undue hardship' on the employer because of significant difficulty or expense.

Throughout the discussion the American Diabetes Association makes the following statement and I will just make it here - “Contact us to discuss a specific issue with a Legal Advocate.”

Continued in part 2 of 2 parts.