September 19, 2008
Diabetes Discrimination: A New Headache for Employers
By Elsberry, Richard B
How do you deal with an employee who has his disease under control? THREE OF THE BIGGEST ONgoing regulatory challenges facing industrial employers are a requirement from the U.S. Occupational Safety and Health Administration to provide a safe workplace, the Environmental Protection Agency's anti-pollution crusade, and the high cost of compulsory Workers' Compensation insurance.
Soon to clear Congress, it will facilitate a surge in discrimination litigation targeted at firms who refuse to make reasonable workplace adjustments requested by disabled employees, or who have hiring or promotion policies that automatically reject otherwise qualified disabled applicants. The Americans with Disabilities Act, or ADA, is enforced by the Equal Employment Opportunity Commission, or EEOC.
The original intent of Congress when it passed ADA in 1990 was to protect an estimated 50 million Americans considered disabled by a dozen or more physical or mental impairments, such as epilepsy, HIV, MS, cancer, diabetes, MD, bipolar disorder, smf depression.
But in recent years federal courts have made many disabled persons subject to a Catch-22.
The Supreme Court, for example, ruled that a diabetic who has the dis ease under control with medications or diet is not disabled and therefore not covered under ADA. Yet because he is a diabetic he can be fired if the employer considers him a "direct threat" to the workplace because he might experience a hypoglycemic (low blood sugar) episode and pass out, causing the accident.
Other courts have ruled that a job candidate with Muscular Dystrophy was not disabled because he was able to perform the "major life activity" of brushing his own teeth, and that a fired mechanic with high blood pressure was not covered by the ADA because he had it under control with drugs.
These and other court rulings incensed many congressmen, who have struck back by introducing the ADA Amendments Act (HR 3195) to restore the original intent of the law. The restoration act was passed 402-17 in the House of Representatives on June 25. Confirmation in the Senate is expected this fall.
The bipartisan act clarifies the definition of disability, including what the phrase "substantially limited in a major activity" means. It also prohibits the consideration of "mitigating measures," such as medication, and extends coverage to those who experience discrimination based on a perception of impairment, regardless of whether they actually have a disability.
ADA also prohibits an employer from firing or taking other action against an employee because he has a spouse, children, or relatives who require expensive, ongoing healthcare for disabilities.
The ADA applies only to firms with more than 15 employees, but many states also have comprehensive discrimination laws encompassing firms with as few as three employees.
The most widespread American disability is diabetes, which affects 24 million adult Americans, of which three million were diagnosed in the last two years. Diabetes is an incurable malady; it occurs when the pancreas stops producing the hormone insulin, which regulates bodily blood-sugar levels. To keep it in check requires regular monitoring and medication, and changes in lifestyle and diet.
Diabetes is spreading throughout the adult population faster than you can say Wilford Brimley. Thanks to an aging workforce, sedentary jobs, and rampant obesity, its incidence increased by 80% between 1996 and 2006, and current estimates are that another 41 million Americans are highly susceptible to this largely hereditary disease.
Many middle-aged workers find out they are candidates for diabetes when one of their parents is diagnosed as diabetic and has to start taking insulin and frequently monitoring glucose (bloodsugar) levels.
As diabetes is not an obvious disability, like a missing limb, chances are many firms already have diabetics on their payroll. They could be among the 17 million Americans successfully managing the illness, or they might be among the 7 million who have the disease but don't yet realize it.
Employers need to be concerned about diabetes not only because of its potential for discrimination litigation, but also because it can affect on-the-job performance and increase healthcare costs. Average medical expenses of a diabetic are five times greater than for a non- diabetic-$13,243 versus $2,560. Employers also need to be aware that diabetes can cause hearing and visual impairment, which uncorrected could lead to a workplace accident.
Regardless of how the courts might interpret the restored ADA, it seems to be in the employer's best interest to avoid costly confrontations and to try to improve productivity by working with the growing diabetic population, and those at risk for the disease. Some firms with successful diabetes prevention programs are General Electric Energy, Land's End, Lockheed Martin, General Motors and the Dallas Federal Reserve Bank.
As diabetes is not an obvious disability, like a missing limb, chances are many firms already have diabetics on their payroll
By Richard B. Elsberry, EA Contributing Editor
Copyright Barks Publications Sep 2008
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