What's Hot: Diabetes and Your Rights in the Workplace

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What's Hot: Diabetes and Your Rights in the Workplace
Diabetic-Lifestyle
February 2004

Those of us who have diabetes, and have also worked, know that there are times that we have faced problems that our co-workers do not even dream of. For me, when I developed type 1 diabetes and was in charge of a hospital unit, I had to think fast about how I would handle this new situation. Who did I tell about the numerous injections I would be taking a day? Where was I to stash my extra carbohydrates for hypoglycemic events? Could I test blood glucose levels in front of other doctors? How should I handle the really stressful times of the day? The list of problems seemed to grow daily. Mostly, I was afraid that others would question my competence, when just weeks before I was the golden girl. This article gives you an overview of your rights, as well as definitions that you will need to have on the tip of your tongue on certain days.

Sometimes we give you the pertinent phone numbers at the end of an article, but these are so important we start with them.

1. The President's Committee on Employment of People with Disabilities (1-202-376-6200 voice; 1-202-376-66205 TDD) can provide a packet of information on the Americans with Disability Act.
2. The Job Accommodation Network (1-800-526-7234 voice and TDD) provides free information for employers on how to make accommodations for disabled workers.
3. The Equal Opportunity Commission can send publications (1-800-669-3362 voice; 1-800-800-3302 TDD) and answer questions (1-800-949-4232) on the Americans with Disabilities Act.
4. The Disability Rights Education and Defense Fund (1-800-466-4343 voice and TDD) provides free technical assistance to lawyers and people with disabilities. The fund can tell you about your legal options and refer you to places for help.

Too often in the past people with diabetes were denied jobs or fair treatment at work solely because they had diabetes, however, now the Americans with Disabilities Act which was enacted in 1990 puts the strong arm of the law on the side of fairness. It protects us from job discrimination. This law protects our civil rights. It protects the rights of disabled people in several ways. Congress intended the act should break down the barriers that keep disabled people from taking part in society to the fullest. It bans discrimination against the disabled as do other laws based on age, sex, race or religion. Title 1 of the law, which deals with discrimination, is the part of the act that affects those of us with diabetes. It bans discrimination against qualified people with disabilities in all aspects of employment. These include application procedures, hiring, firing, promotions, pay, and training. Employers also must not discriminate in recruiting, advertising, tenure, or layoff. The act also protects disabled people from unfair treatment in leave and fringe benefits.

How does the law define disability? It does so in three ways, but you need to meet only one of these definitions.

* You are disabled if you have a physical or mental impairment that greatly limits one or more major life activities. You are disabled if you once had such an impairment.
* You are disabled if others regard you as having impairment. The act also protects you if you associate with or have a relationship with someone who has a disability.
* If you have never been disabled by diabetes, but your employer discriminates against you because he thinks diabetes is a major impairment, then you meet the third definition of disability.

"Major life activities" include seeing, hearing, speaking, walking, breathing, doing manual tasks, learning, caring for oneself and working. If your diabetes has ever greatly limited you in any of these activities, the law considers you disabled. You meet either the first or second part of the first definition above.

The law also protects your husband or wife from unfair treatment. What that means is that they cannot be treated differently just because you have diabetes. The law also protects your roommates, friends and parents from discrimination because you have diabetes.

Private companies, state and local governments, employment agencies and labor unions must comply with the Americans with Disabilities Act. As of July 16, 1992, companies with at least 25 workers had to obey the act and as of July 26, 1994, companies with at least 15 workers must also obey the law. The law does not protect those who work in companies with 14 or fewer people, nor does it protect those who work for the federal government. The Rehabilitation Act of 1973 does protect these last workers. It also protects people who work for federal contractors or for organizations that get federal funds. Other employers who are exempt include Native American tribes and tax-exempt private clubs. Also, the act lets stand laws that restrict disabled people from jobs for safety reasons.

If you are not covered by the federal law, check your state and city laws which may cover you.

Your employer must make reasonable accommodation for you if you are qualified for the job or you can do "essential functions" with or without "reasonable accommodation."

"Accommodation" means that your employer changes your work area, or schedules or provides training or help to let you do your job. The employer does not have to make accommodations that would cause "undue hardship." What that means is they don't have to accommodate you if that would be too hard or cost too much. Courts decide this case by case. Your employer cannot make you pay for accommodations. It can refuse to make accommodations if an undue hardship, but only if funding is not available from another source. You could be the "source," as could vocational rehabilitation. You are not entitled to more sick leave than other employees. It also does not have to find you health insurance that does not have a preexisting condition. It can hold you to the same standards of performance as other workers. Finally, a company does not have to give a job to a person just because of a disability, nor does it have to give preferential treatment to a disabled applicant over any other applicant.

One question that comes up often has to do with whether to tell co-workers that you have diabetes. The Americans with Disabilities Act does not require you to tell your employer that you have diabetes. But the act protects you from discrimination only if your employer knows you are disabled. You can tell your employer later and still be protected. For example, if you didn't need an accommodation when hired but need one currently or in the future, you can tell your employer at that time. In that case, you become protected when you need the accommodation. After you are hired, a company can make you have a medical exam only if makes all people who are hired for that category of job have one. You cannot be forced to have a medical exam before you are hired. A company can take back an offer of a job because of the results of a medical exam but only if the reason is related to the job. The judgment that you are not fit must be based on current medical knowledge and objective evidence. The doctor doing the exam must know the functions of the job.

If you think you have been discriminated against because you have diabetes, you have avenues of redress.

* You can try to solve your problem by talking directly with your employer.
* You can go to your union or employee group for help.
* You can see a lawyer and have them make a phone call or write a letter to your employer. The American Diabetes Association has an Attorneys' Network and can help you find as lawyer.
* If you have a chapter of the ADA near by, you can call them and find out which lawyers are in the network.
* If you want to file charges with the Equal Employment Opportunity Commission, you can find the number in the phone book. Look in the blue pages under US Government. Usually you have a certain amount of time to file your charge after the act of discrimination.

If you win your case, the company must place you in the position you would have had if you had not been discriminated against. To do so, the company may need to hire, promote, or re-instate you. Also, the company may have to give back pay or reasonable compensation. The court may also require the company to pay you damages or pay your lawyer's fees.

Do not quit your job if you are in litigation. It will make your case stronger if you stay. If you do leave your job, look for other work. That will count in your favor, as the court will not think you are unwilling or unable to work. Also, keep a record of your blood glucose levels so that you can show you are in good control of your diabetes. Make sure you see your physician regularly, as you may need your doctor to confirm your good health and how well you control your diabetes. Get your medical needs in writing from your physician. Try to schedule your medical appointments at times that do not interfere with your job, and check with the doctor's office on appointment days to see how late he/she is running.

Make plans at work about eating and snacks as well as blood glucose testing. If you are at a desk, it may be easier to have food there than to take time from work to eat. Keep your testing meter where you can reach it when you need it. Remember that extreme temperatures can affect these supplies. Watch out for stress and have a plan to adjust for extra stress during the day. Wear medical identification so your co-workers will know you have diabetes. Don't assume that your employer or co-workers know how to treat an insulin reaction event. You can use your hypoglycemic events to teach others about diabetes. And lastly, be an advocate for diabetes education and research. When I first went on the board of the ADA, I was gratified to see how many corporations joined our quest for the cure and served on the board. As they learned about how their employee's lives were changed by dealing with diabetes, their corporations modified small and large aspects of corporate life. If you have questions, please let us know, and let your supervisor and those above know your concerns. We can all work together to make sure we all do the best jobs we are capable of.

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