Dr. Derm formerly employed three secretaries. One secretary was terminated, and the remaining ones must do the work of three staff members. He still has 17 employees.
One of Dr. Derm's current secretaries is a diabetic whose health has become increasingly fragile. She injects herself with insulin twice a day and tests her blood sugar twice a day while at work. She takes a lunch break plus four different snack breaks.
It seems that the diabetic employee is never at the front desk. The other secretary is overwhelmed and patients are complaining. Dr. Derm tells the diabetic employee that she must curtail her snack breaks or he will have no choice but to terminate her employment. She responds that diabetes is a disability and that if Dr. Derm terminates her for his stated reason, she will sue him under the Americans with Disabilities Act. Is the employee protected?
The ADA bans discrimination against a "qualified individual with a disability," defined as an "individual with a disability who, with or without reasonable accommodation can perform the essential functions of the employment position that such an individual holds or desires." The ADA prohibits discrimination based on perceived disability - when an employer wrongly assumes an employee can't do a job because of a disability.
The ADA is prospective. It is intended to ensure that the employee gets any necessary help, called an "accommodation," to do the job correctly.
The ADA cannot be raised as a defense after a disabled employee is disciplined or fired for poor performance or for violating work rules.
In one reported lawsuit, a probationary police officer had a diabetic attack, which resulted in disorientation and memory loss. He drove erratically through a neighborhood and was stopped by other police officers. He was terminated and sued.
Claims not valid
In another case, the plaintiff police officer, while on duty, suffered two hypoglycemic episodes that caused him to become disoriented and dysfunctional. He resigned after being given a choice between resignation and demotion, and then initiated a lawsuit based on ADA.
The courts determined that these were not valid ADA claims, because the employees were terminated for valid work-related issues, not because they were disabled. Neither plaintiff police officer had sought an accommodation to avoid the problems prior to their prospective incidents.
The ADA defines a disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." The disability must also last at least six months and not be self-limited - such as pregnancy. The courts' decisions on diabetes, in the end, relate to whether diabetes is an impairment that substantially limits a major life activity.
In the Tennessee case of McPherson v. Federal Express Corporation, the diabetic plaintiff alleged he was impaired in the major activity of eating, but his claim was denied because he failed to submit evidence that his diabetes significantly limited him in a major life activity. Cases such as this make it clear that a mere diagnosis of diabetes is insufficient to prove sufficiently limiting; instead, evidence must be offered to link behavior, such as restrictions on timing of meals, to diabetes.
However, a federal district court in New York said that a diabetic suffers no impairment in his ability to eat and digest food, and the requirement of a dietary modification does not require a restriction "as to the condition, manner, or duration under which an individual can perform the activity of eating." The court noted that many people choose to make changes in their diet - both nondiabetics and diabetics.
Whether Dr. Derm can be sued under ADA for terminating his diabetic employee for her eating habits may be jurisdiction-related. It is best if he seeks legal advice from his local healthcare attorney.
Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.