By: Deanna Glick
Could it be that when it comes to diabetes and the workplace, honesty isn’t always the best policy?
That’s Jeff Dempsey’s stand on job hunting. And that policy remains in effect until Dempsey, a systems manager in Lawrence, Kansas, is hired and has been on the job for at least a few weeks.
“If you volunteer information, then there is the opportunity for discrimination. Sad, but true,” Dempsey wrote in a Web site posting on the subject. “I don’t like it, but in the real world, sometimes the better part of smartness is silence. I shouldn’t have to hide the fact that I am diabetic. But sometimes the loss in the battle helps win the war. Once you are hired, if you prove your worth, and allay their fears of you passing out every 28 seconds…they may change their views on the subject. If your plusses outweigh your minuses…you tend to stay around.”
Laws Don’t Always Help
Despite federal and state laws designed to protect people with diabetes from discrimination in the workplace or as job applicants, many follow Dempsey’s lead for fear employers will find a way to maneuver around legal requirements. Most succeed and make a living like everyone else.
However, legal protection requires a worker to show that he or she is a “qualified individual with a disability” and, if given “reasonable accommodation,” can perform essential job functions. For a diabetic, accommodations may include breaks to check blood glucose levels, bathroom breaks, being allowed to eat on the job and keep supplies and food handy.
Chris Kuezinski, assistant legal counsel for the Equal Employment Opportunity Commission, says that in order for diabetes to be considered a disability, one must prove substantial limitation in a major life activity due to diabetes. According to the Supreme Court, he says, if a diabetic is being treated—taking medication or insulin, for example—he or she is not limited in any major life activity and is not considered to be disabled.
Diabetic Workers Have Their Day in Court
Still, cases of discrimination have been successfully argued under the Americans With Disabilities Act (ADA), most notably in the case of Rebecca Fraser vs. U.S. Bancorp.
Craig Crispin, Fraser’s attorney, says that his client sued her employer, U.S. Bancorp, in 2003 under the ADA after not being allowed to eat at her desk and later being fired for an alleged unexcused absence for medical appointments and training to begin using an insulin pump. Fraser won on appeal, was awarded an undisclosed sum and no longer works for the Oregon company.
According to the case, Fraser’s supervisor prohibited her from eating at her desk. During one of her shifts, Fraser recorded her blood glucose at a “dangerously low 46.” Minutes later, she became disoriented as her blood glucose dropped to 34. Fraser eventually passed out in the lobby of the bank building. With her husband’s and a co-worker’s assistance, she eventually was taken home and injected with glucagon to raise her blood glucose.
Crispin said he was able to argue that the employer failed to accommodate Fraser by not allowing her to eat during work hours, and that Fraser was disabled under the ADA because she was severely limited in the major life activity of eating. The case was settled for a confidential sum paid to Fraser.
Discrimination Is Difficult to Prove
But proving disability in cases such as Fraser’s is difficult.
“It’s a major hurdle,” Crispin says. “In cases where the client is in a wheelchair, it’s not an issue, but when the disability isn’t obvious, it’s a real trap. If they can’t see it, they don’t understand it.”
The defense in the Fraser case argued that only when “the right things aren’t done are people with diabetes substantially limited,” Crispin says. In their minds, when Fraser was taking insulin and eating properly, she was not disabled.
“In the breakthrough cases we’re seeing, eating is considered a major life activity,” he says. “The case was decided on the major life activity of eating and what would happen if she didn’t.”
Another factor in diabetes discrimination cases is when the employer claims that the person with diabetes creates a safety risk to other employees, according to the American Diabetes Association.
But Kuezinski, of the EEOC, says that progress has been made. The Department of Transportation shows signs of moving away from a rule that prohibits hiring of truck drivers who take insulin, with a pilot program that issues waivers under certain conditions.
Also, state laws may provide greater protection than the ADA. Under California’s Fair Employment and Housing Act, a disability does not have to be “substantially limiting,” which eliminates the tedious task of proving diabetes is a disability from case arguments.
How to Survive Diabetes in the Workplace
How people with diabetes manage their condition in the workplace varies about as much as the treatment for the disease itself.
Some openly inject insulin in front of co-workers and eat whenever and wherever necessary. Some discuss the disease openly. Others conceal paraphernalia to avoid potential problems or for fear of offending a co-worker.
One common link among people with diabetes is the effort it takes to care properly for themselves in spite of the workplace.
Damian Caroccia, a business analyst for a utility company in Southern California, says he doesn’t worry about what other people think.
“I take my shot when I need to, and I go to lunch when I need to. I just say ‘bye-bye’ and walk out the door,” says Caroccia, 34, who’s had type 1 diabetes for 27 years. “I do what I have to do.”
“I have put my health high on my priority list. My co-workers like it because usually they are feeling the same way. They don’t have diabetes, but they get hungry, too.”
Tina Robertson, a type 1 diabetic for 24 years who lives in Reno, Nevada, takes a more modest approach.
“Before I was on the pump, I would go to the bathroom for shots and check blood sugar, and I kept out of the way,” she says. “You can never really be who you are. I’ve had co-workers complain because I was allowed to eat a cookie at my desk. You just don’t want to put up with the garbage anymore.”
Shawna Trupioni got to that point. After stints as a professional photographer, receptionist, bus driver and secretary, she began working out of her Avondale, Arizona, home as a special projects assistant for a law firm last year. In addition to avoiding stress and a long commute, she’s able to better care for her diabetes without having to worry about specific times for lunch, snacks or testing.
“It was a lot more difficult [in the workplace],” she says. “I had to worry about offending someone with a BG check or a shot, had to worry if someone saw me ‘shoot up’ and might report me for [using] drugs. Had to worry about the ‘food police’ and extra restroom breaks. People thought I got special treatment for extra snack breaks. Once I became devoted to my diabetes care, my supervisors and other co-workers worried about ‘the amount of time’ I spent on myself.”
Many Diabetics Need an Employer to Get Good Health Benefits
Because of restrictions on individual health and life insurance policies, many people with diabetes work for someone else simply to take advantage of group health benefits.
Peter Rowe, a 53-year-old artist living in Seattle, Washington, who was diagnosed with type 1 diabetes 37 years ago, is one of them.
In an e-mail, Rower writes, “The main effect diabetes has had on me professionally has been the need to work as an employee for someone, rather than trying to work for myself as many other artists often do. Because of the diabetes, I was never willing to work without good health insurance, and for a very long time, individual coverage was simply not available to me, or if available, was only very limited and very costly.”
According to the American Diabetes Association (ADA), the vast majority of those in the United States under the age of 65 who have health insurance obtain coverage through employer-sponsored group health plans. Such plans often include prescription drug benefits, have low-cost sharing or co-payments, and at least part of premiums are subsidized since employers receive federal income tax subsidies and are subject to greater consumer protections under federal and state law.
There is no federal law requiring employers to offer health insurance coverage to employees and their dependents, or to contribute a minimum amount toward the employee’s or dependents’ premium, according to the ADA. However, a collective bargaining agreement between a union and an employer may obligate the employer to offer coverage.
In addition, a federal law known as ERISA prohibits employers from discriminating against an ill employee by charging a higher premium or refusing coverage. The law also limits pre-existing condition exclusion periods to no more than 12 months and requires employers to credit prior coverage toward a new pre-existing condition exclusion period.
Federal law prohibits discrimination in the workplace based upon disability
- 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.
- The Rehabilitation Act of 1973 covers employees who work for the executive branch of the federal government or for an employer that receives federal money.
- The Congressional Accountability Act covers employees of Congress and legislative branch agencies.
Making It Work
Legal protection doesn’t always guarantee a diabetes-friendly workplace. And there are times when wrongdoing is simply impossible to prove.
Tina Robertson, a type 1 diabetic for 24 years who lives in Reno, Nevada, believes she and other co-workers with health problems were singled out for a string of layoffs in 2001 at a diagnostic testing equipment company. The layoffs were legitimate, the result of post-9/11 downsizing, Robertson says.
“But I noticed all of us were over 40 with health problems,” she says. “We were insurance users. One had a heart problem. Another was seven and a half months pregnant. When I mentioned it, it was ignored, swept under the carpet.”
Robertson sought help at the state unemployment office, but says she was discouraged from pursuing the matter “unless I could prove, hands-down, that discrimination was going on.”
Robertson found work as an office manager for a locksmith, but left the job last year for the sake of her health. The former truck driver who has now been out of work since May 2004 describes herself as a hard worker who’s never been fired or disciplined or needed medical assistance at a job. But finding work has proven difficult even though she doesn’t disclose the fact that she has diabetes to potential employers.
Working Toward a Better System
John Griffin, chairman of the American Diabetes Association’s Legal Advocacy Subcommittee, works for more education in hopes of reducing discrimination against diabetics. He organizes summits with human resources departments to educate them about diabetes management. Employers aren’t always familiar with the anti-discrimination laws and requirements.
“The landscape for diabetes care has changed so drastically in the past 10 years,” says Griffin, who has a rare form of diabetes known as type 1½. “The challenge we face now with employers is that knowledge and understanding of diabetes is lagging behind. There is a fear that some employers have that is not justified. The Fraser case is an example of what can happen when an employer is fixated on a rule that doesn’t work. We work at helping employers be open-minded.”
Some believe legal protection must also improve. Craig Crispin, the attorney in the Fraser case, said he would like to see better protection under the Americans With Disabilities Act.
“It did a lot for helping disabled people in the first three to four years of its existence, but it’s become more and more ineffective,” Crispin says. “We need to broaden the range of occupations protected and the definition of what’s covered. It really should be the Americans With Medical Conditions Act.”
Joyce Walker-Jones, senior attorney advisor with the Equal Employment Opportunity Commission, said strengthening the Americans With Disabilities Act isn’t the answer.
“Disability is just not one of those things that universally we can define, because it is so individual,” she says. “When we first started writing [the law], we thought if we included all of the ways that people with diabetes could have a disability, that that might make employers more fearful.”
Walker-Jones says employers would be wise not to discriminate against people with diabetes for reasons beyond avoiding a lawsuit.
“There’s a good possibility that the next person you hire might have diabetes, also. There are 18.2 million Americans [who have diabetes].”
Hypos at Work Not So Common
Despite all of the hullabaloo over a diabetic employee going low in the workplace, researchers say it rarely ever happens.
Researchers in the United Kingdom examined the incidence of hypoglycemia in regularly employed people with insulin-treated diabetes. A 12-month survey of 243 employed people (age range 20-69 years) with insulin-treated diabetes was done, and details of hypoglycemic episodes were recorded.
Over the 12-month period, a total of 1,955 mild (self-treated) episodes of hypoglycemia and 238 severe (requiring external help) episodes were recorded.
Of the severe hypoglycemic episodes, 62 percent occurred at home, while 15 percent occurred at work. The other 23 percent occurred in a non-home or work-related setting. In addition, 52 percent of all severe hypo episodes occurred during sleep.
“In this [group of people], severe hypoglycemia in the workplace was uncommon and seldom caused disruption or serious morbidity,” the researchers conclude. “On the basis of the frequency and severity of hypoglycemia observed in the present study, restriction of employment opportunities for most people with insulin-treated diabetes may be difficult to justify.”
—Diabetes Care, June 2005
Where Severe Hypos Most Commonly Occurred
- Home 62%
- Other places 23%
- Work 15%
When Severe Hypos Most Commonly Occurred
- During sleep 52%
- Other time 48%
FOR MORE INFORMATION ABOUT ISSUES RELATED TO DIABETES IN THE WORKPLACE, CONTACT:
Equal Employment Opportunity Commission
(800) 669-4000 (voice)
(800) 669-6820 (TTY)
U.S. Department of Justice
Americans With Disabilities Act
(800) 514-0301 (voice)
(800) 514-0383 (TTY)
Office of Disability Employment Policy
U.S. Department of Labor
Social Security Administration
(800) 772-1213 (voice)
(800) 325-0778 (TTY)
American Diabetes Association
Georgetown University’s Consumer Guide to Health insurance
Job Accommodation Network
National Diabetes Education Program