In response to a 13 percent increase in the number of Americans with Disabilities Act (ADA) complaints alleging discrimination involving diabetic employees, and with the incidence of diabetes reportedly on the rise in the U.S., the U.S. Equal Employment Opportunity Commission (EEOC) issued a new guidance document in November 2003 addressing an employer’s obligation in connection with job applicants and employees who suffer from diabetes.  Given the legacy of myths and stereotypes associated with diabetics, as well as the fact that the ADA requires employers to evaluate an employee’s actual limitations rather than perceived limitations, employers ought to familiarize themselves with the document, entitled Questions and Answers About Diabetes in the Workplace and the ADA.

Does the fact that your employee suffers from diabetes automatically mean that she can assert specific rights under the ADA or that you, as an employer, are obligated to provide her with a reasonable accommodation?  Not necessarily.

The ADA requires that employers only accommodate known disabilities and only those employees who satisfy a complex statutory definition.  In connection with diabetes, these limits are highly relevant.  In 1999, the U.S. Supreme Court defined the extent to which employees could claim the benefit of the ADA’s protections and did so in a manner favorable to employers.  The Court’s rulings in Sutton v. United Airlines, Inc. and Murphy v. United Parcel Service, Inc. established a couple of key points: (1) the Court’s controlling interpretation does not always track the EEOC’s interpretive guidance on issues arising under federal employment discrimination statutes (which is notable since the EEOC’s positions are generally adverse to employers); (2) the group of potential ADA plaintiffs is limited to those individuals who are substantially limited in a major life activity only after consideration of the application of corrective measures to control their condition, and; (3) courts must evaluate an employee’s status as a disabled person under the ADA on an individualized, case-by-case basis.  This effectively reversed a trend among some courts to hold that medical conditions such as diabetes, epilepsy, and cancer, were disabilities per se, without regard to how those conditions actually affected an employee who suffers from those conditions.

The Sutton and Murphy decisions are significant because diabetes is a highly individualized condition.  As with other medical conditions, diabetes qualifies as a disability only if it substantially limits one or more major life activities of the employee or if the employer regards the employee as being substantially limited in one or more major life activities due to diabetes.  Diabetes is managed differently for
different individuals, depending on the type of diabetes at issue (Type I or Type II).  Typically, the condition is managed through a combination of diet, exercise, and, for some individuals, through oral medication or insulin injections.  At the same time however, complications from diabetes may result in substantial limitations in a person’s major life activities. These complications may include eye disease (affecting the ability to see); nerve damage (affecting sitting, standing, walking, eating); blood vessel disease (walking); and difficulties with reproduction.  These complications are often not controlled by diet, exercise or insulin.  Thus, while some employees who are diabetic may not qualify as disabled individuals under the ADA, others clearly will qualify.

After considering this fact, prudent employers will consult the EEOC’s new guidance document and take advantage of the useful information it contains.  Among other things, the document discusses an employer’s ability to obtain and use medical information regarding job applicants and current employees, reviews limitations on the disclosure of employee medical information, and offers the EEOC’s perspective on how to accommodate employees with diabetes and how to tackle workplace safety concerns.
EEOC reiterates that, before making a job offer, an employer cannot ask questions about whether an applicant has diabetes or whether the applicant uses any prescription drugs such as insulin. After an offer is made, however, an employer can ask questions relating to an applicant’s health (including if she has diabetes) in an attempt to determine whether the employee can perform the essential functions of the job, so long as the employer treats all employees the same.

In its guidance, the EEOC also identifies several examples of accommodations that may be appropriate for diabetic employees, including: (a) the designation of a private area to allow diabetic employees to test blood sugar levels or take insulin; (b) a designated place to rest until blood sugar levels become normal; (c) the use of work breaks to allow a diabetic employee to eat or drink, take medication, or test blood sugar levels; (d) leave for treatment associated with diabetes; (e) modified work schedules or shift changes; and/or (f) allowing a person with diabetic neuropathy (a nerve disorder associated with diabetes) to use a stool.  According to EEOC, the most common accommodation a diabetic employee is likely to need is easy and virtually cost-free: the time and space to check blood glucose levels and to self-administer medication or food.
With respect to workplace safety concerns, the EEOC reiterates that employers should not act based on fears or stereotypes about diabetes, but need to evaluate each employee based on his or her own skills, knowledge, experience, and how having diabetes affects them.  Employers should determine whether having the individual in the workplace creates a significant risk of substantial harm to the individual or to others that cannot be reduced or eliminated through a reasonable accommodation.
EEOC’s new guidelines are available on line at www.eeoc.gov/facts/diabetes.html.