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Diabetes complicates accommodation efforts

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Diabetes complicates accommodation efforts

Employers with workers who suffer from diabetes not only have potentially daunting health care costs to consider but a host of legal requirements with which they must comply, including those raised by the Americans with Disabilities Act and the Family Medical Leave Act, observers say.

An estimated 20.8 million U.S. residents are diabetic, with 54 million considered prediabetic, according to the U.S. Centers for Disease Control and Prevention. With about 1.5 million new cases diagnosed a year, diabetes is an issue likely to confront employers more frequently in the coming years.

Management at any given company likely is unaware in the vast majority of cases if an employee is diabetic "because they're simply putting in a day's work and doing it well," said John W. Griffin Jr., an attorney with Marek, Griffin & Knaupp in Victoria, Texas, who is chairman of the American Diabetes Assn.'s legal advocacy subcommittee and a diabetic himself.

When the disease does become an issue, two primary laws that come into play are the ADA and the FMLA (see story, page 32).

The ADA protects workers considered to have a physical or mental impairment that substantially limits one or more major life activities. The law requires employers to make a reasonable accommodation to a worker's disability unless it imposes "undue hardship" on business operations.

A diabetic also is protected under the ADA even if the person is not disabled, but is treated as disabled by his or her employer, such as being refused a job solely because of the diabetes.

Complicating the legal issues surrounding ADA is a lack of consistency among courts as to when a worker could be considered disabled. Virtually identical sets of facts can lead to opposing court decisions, say observers.

Employers can ask a worker questions or require a medical exam if there is a legitimate reason to suspect diabetes may be affecting the worker's ability to do the job, according to the Equal Employment Opportunity Commission, the federal agency that enforces the ADA's employment provisions.

The employer can also ask questions if there are safety concerns that pose a "direct threat" to the employee or others, according to the EEOC.

But employees are not required to reveal their medical background, and diabetes frequently comes to the employer's attention only when the worker requests accommodation.

The issue typically arises when an employee asks for breaks to test their insulin levels, to give themselves an injection or to eat food to control their blood sugar when it is in violation of normal workplace rules, said Ruth Colker, a law professor at the Michael E. Moritz College of Law at Ohio State University in Columbus, Ohio.

"If the employee requests an accommodation, the employer should take it seriously" and honor the request if it is feasible, said Ryan K. Buchanan, an attorney with Helms Mulliss & Wicker P.L.L.C. in Charlotte, N.C.

"Employers are charged with making a reasonable accommodation that allows an employee to complete the task that is central to the job, and diabetes is difficult in that regard, because the symptoms vary from person to person, so what is a reasonable accommodation for one person with diabetes may not be reasonable for another person," Mr. Buchanan said.

As a result, a blanket policy "may lead to problems," despite the fact that a policy based on the individual "is tough in this age, when we want everything to be objective," he said.

Frank Alvarez, an employer attorney with Jackson Lewis L.L.P. in White Plains, N.Y. agreed. "It requires an individualized assessment and it's all going to turn on the type of job the person has, how controlled the diabetes is and the nature of the accommodation that they might need."

Part of this process involves "obtaining objective medical evidence and input," Mr. Alvarez said. A decision "cannot be based solely on (the employer's) lay opinion about an individual's capabilities."

Mr. Alvarez added, though, that by engaging in an interactive, good faith dialogue with an employee, employers "may be better able to anticipate the operational challenges that they have and work out a mutually agreeable accommodation that helps everyone."

None of these problems is insurmountable, say observers.

Santa Monica, Calif.-based solo attorney and diabetic Kriss Halpern remembers his first job with a major law firm. "I was terrified to tell my employer" and said nothing about being a diabetic during the interview process.

"But once I got the job, I told them," said Mr. Halpern. "They were fine with it, and it was no big deal at all, and I think most employers who are smart would handle it the same way."