Are diabetics protected under Disabilities Act?
Your assessment of patients will become key
A diabetic man applies for a job as a truck driver. But he doesn’t get it because the prospective employer fears his fluctuating blood sugars could be a safety hazard for the applicant and for other drivers. Is this discrimination?
Probably yes, says Michael Greene, a Portland, OR, attorney and chairman of the legal advocacy section of the American Diabetes Association (ADA) in Arlington, VA.
But is the prospective truck driver covered by the force of the law? "We’re working on it," says Greene. "In some states, he would have to be considered on an individual basis, but that’s not universal yet."
There is ample case law in the area of diabetes and disabilities to classify the disease as a disability, says Greene. "It’s incurable and not correctable, but it is controllable with constant effort. That makes it a disability."
By law, disabled Americans are protected from discrimination, on the job and elsewhere.
The ADA has targeted two major areas where diabetics suffer discrimination:
1.People seeking jobs which involve driving commercial vehicles.
2.People seeking public safety jobs, including law enforcement, firefighters, customs officials, and security guards.
The goal, says Greene, is to eliminate blanket bans that pertain to all diabetics in certain areas and replace them with individual assessments on a case-by-case basis. This also gives the patient responsibility for proper glycemic control because he must document good glycemic control and support his ability to do the job. Health care professionals are key to those individualized assessments, Greene says.
"It is the responsibility of health care professionals to make an assessment of a patient and evaluate that patient’s history and ability to do a certain job," he explains.
Discrimination against diabetics has focussed almost exclusively on those who use insulin. Many states have laws flatly prohibiting people using insulin from obtaining commercial drivers’ licenses. Progress is being made, says Greene. The Justice Department has recently forced two states, North Carolina and Arizona, to remove their blanket prohibitions and allow qualified insulin-dependent diabetics to drive school buses. Similar laws in other states are now under review.
The Federal Highway Administration is currently reviewing its blanket ban on commercial driving, and the Federal Aviation Administration has withdrawn its blanket ban on private pilot’s licenses for diabetics using insulin.
A May decision in the U.S. 5th Circuit Court of Appeals upheld the right of a diabetic man to be individually assessed for a position as a policeman. However, the picture was somewhat muddied in June when the U.S. Supreme Court issued two decisions not directly related to diabetes that deny people with "correctable" disabilities protection under the Americans with Disabilities Act.
"Most diabetics will still fall under the protection of the Americans with Disabilities Act," says Sharon Rennert, an attorney with the Equal Employment Opportunity Commission in Washington, DC. "But there may be some who, because they have achieved excellent glycemic control, might no longer be covered."
One of the cases involved two severely nearsighted women who were denied interviews for positions as airline pilots by United Airlines, which has a policy that pilots must have uncorrected visual acuity of 20/100. The court ruled that the women, who both had 20/200 eyesight, were not protected by the Americans with Disabilities Act because their vision was correctable with glasses or contact lenses. No discrimination could be proven under the protection of the 1990 legislation, the court said.
The second ruling involved a man with hypertension who worked as a mechanic for United Parcel Service in Kansas and was required to test-drive repaired trucks on the road as part of his job. He was terminated because state law denies commercial drivers’ licenses to people with blood pressure higher than a systolic pressure of 160 mmHg, which the man exceeded. The court ruled that he was not disabled because medication could control his condition and make him qualified to get a commercial license.
While neither case directly pertains to diabetes, the implications are clear for diabetics, says Randy Fisher of the Kansas Commission on Disability Concerns in Topeka. "Clearly diabetics have a condition for which corrective measures can be taken, so some will not be able to claim protection under that provision of the law," he says.
Greene writes most of the friend-of-the-court briefs submitted to the Supreme Court on behalf of diabetic plaintiffs in such discrimination cases, and he disagrees with Fisher. "Diabetes is not correctable. It is controllable, with great effort and attention, but it is not like nearsightedness, which is corrected as soon as you put on a pair of glasses."
Greene thinks the court decisions will work in favor of most people with diabetes, since it will "put a real focus on individualized assessment." (For the definition of a disabled person, according to the 1990 Americans with Disabilities Act, see box, above.)
However, Rennert says the interpretation of the law covers disabled people in three areas:
- Those who have a substantially limiting impairment to their ability to perform a job: This is the provision under which the two recent Supreme Court cases were presented. The law covers those who have substantial limitations and requires employers to make reasonable accommodations to assist those disabilities.
For example, Rennert says, an employer might be required to allow a diabetic employee time to test blood sugars, eat meals when required, and perhaps even to bend a company policy to permit eating at the desk.
- Someone who was disabled in the past and, while he may now be well-controlled or the condition has been corrected, an employer discriminates on the basis of what might happen: Rennert says new medications and monitoring devices have allowed many people with diabetes to im-prove their glycemic control substantially over the past few years. "An employer is not permitted to discriminate on the basis of a person’s physical condition two, three, or five years ago," she says.
Greene points out that the tremendous advances in medications and other aspects of diabetes management have made glycemic control much more attainable for large numbers of people.
- Someone who is treated by his or her employer as having a substantial limiting impairment: "This happens when an employer blows it all out of proportion and overreacts, for example, by saying a diabetic could never drive a truck," Rennert says. Courts have consistently slapped employers for "guessing based on fears, myths, or stereotypes," she says. "People are still protected from an employer acting in an arbitrary manner."
However, Rennert notes that each case is individual and each must be considered on its own merits. "There is no list of disabilities that are covered or not," she says. "It depends on a whole raft of variables: the individual’s condition, medications taken, and their effects, whether they would be a danger to themselves or others caused by the disability."
For example, Rennert says, a person with diabetes can usually perform a desk job with very few special accommodations. But someone who wants to be a truck driver or operate heavy machinery might, legitimately, be likely to be subjected to further investigation to determine if there is a safety risk: such as checks for HbA1c levels, history of hypoglycemia, or hyperglycemia.
She adds the ability of a person with diabetes to undertake a job like driving a truck cannot be subject to the prejudices of an employer. The new decisions, she says, will mean some with diabetes will not be considered disabled, but most will fit the criteria.
[For more information on the Americans With Disabilities Act, call the hotline for health care professionals, where calls are routed to the region where they originate: (800) 949-4232. Or call the American Diabetes Association at (703) 549-1500.]
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