You have all heard the news. Diabetes is considered to be an epidemic in the United States. According to the American Diabetes Association “..nearly 26 million adults and children living with the disease. An additional 79 million have prediabetes, placing them at increased risk for developing type 2 diabetes” With those numbers in a population of approximately 140 million workers it is likely you have encountered an employee or applicant with diabetes. Since diabetes is covered as a disability under the Americans with Disabilities Act and the ADAAA it is important to be aware of how you may run afoul of discrimination. So here are some pointers on avoiding diabetes discrimination.
In April 2013 the EEOC issued guidance in the form of questions and answers on how to deal with several disabilities. Diabetes was one of these and in particular the dealt with four areas that included:
- when an employer may ask an applicant or employee questions about her diabetes and how it should treat voluntary disclosures;
- what types of reasonable accommodations employees with diabetes may need;
- how an employer should handle safety concerns about applicants and employees with diabetes; and
- how an employer can ensure that no employee is harassed because of diabetes or any other disability.
My purpose in this post is to cover the first bullet point.
When may you ask about diabetes?
As with other disabilities you may NEVER ask about diabetes prior to making a job offer. You may think that no one would ever ask such a question but in situations where safety may be a concern some interviewers might be tempted to inquire about the ability to work long hours. You can ask about someone’s ability to perform an essential function but you cannot couch it in terms such as “We work long hours and often skip lunch. Do you have a condition such as diabetes where this would cause you a problem?”
In addition to this prohibition, if an applicant voluntarily reveals the fact that they have diabetes you cannot ask for further information about the disease or its treatment, with the exception of asking if the employee will be able to perform the essential functions of the job with or without an accommodation.
After an employment offer
After an employment offer is made an employer may ask about health conditions and even require medical evaluations, as long as ALL candidates are asked the same questions and given the same evaluation. Additionally an employer “can ask individuals who disclose a particular illness, disease, or impairment for more medical information or require them to have a medical examination related to the condition disclosed.”
According to the EEOC:
When an applicant discloses after receiving a conditional job offer that she has diabetes, an employer may ask the applicant additional questions such as how long she has had diabetes; whether she uses insulin or oral medication; whether and how often she experiences hypoglycemic episodes; and/or whether she will need assistance if her blood sugar level drops while at work. The employer also may send the applicant for a follow-up medical examination or ask her to submit documentation from her doctor answering questions specifically designed to assess her ability to perform the job’s functions safely.
What if the applicant is a diabetic?
Under no circumstances can an employment offer be withdrawn just on the basis of the applicant having the disease if it has been shown that the applicant can perform the essential functions of the job with or without a reasonable accommodation. The one exception is if the applicant poses “a direct threat (that is, a significant risk of substantial harm) to the health or safety of himself or others that cannot be eliminated or reduced through reasonable accommodation.”
The EEOC offered this example:
A qualified candidate for a police officer’s position is required to have a medical exam after he has been extended a job offer. During the exam, he reveals that he has had diabetes for five years. He also tells the doctor that since he started using an insulin pump two years ago, his blood sugar levels have been stable. The candidate also mentions that in his six years as a police officer for another department, he never had an incident related to his diabetes. Because the candidate can perform the job’s essential functions without posing a direct threat, it would be unlawful for the employer to withdraw the job offer.
Under the ADAAA dealing with a disability such as diabetes requires a much more substantial effort than in previous years. The act requires a great deal of documentation and participation in “interactive” discussions with the applicants and employees. To get further information I refer you to Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act (ADA).