Legal: Firing your diabetic employee: Can you be sued under the Americans with Disabilities Act?

November 1, 2008

Dr. Job is a hard-working dermatologist practicing in a city hard hit by the downturn in the economy. Overhead is up, and revenues are down. He is left with no choice but to start terminating some employees.

Key Points

Dr. Job is a hard-working dermatologist practicing in a city hard hit by the downturn in the economy. Overhead is up, and revenues are down. He is left with no choice but to start terminating some employees.

Dr. Job is annoyed with this behavior, feels it is disruptive to the work environment, and has decided it interferes with patient-staff flow. He terminates this employee.

Before long, Dr. Job is served with a lawsuit. His former employee alleges that she was terminated for behaviors related to her diabetes. In the lawsuit, she contends that her eating behavior was protected under the Americans with Disabilities Act (ADA) of 1990.

Dr. Job is now devastated. In his attempt to lessen the financial burdens of his practice, he ends up with a lawsuit. He seeks legal help. What is the Americans with Disabilities Act? Will Dr. Job lose this lawsuit?

Americans with Disabilities Act

The ADA provides a general legal framework for access of individuals with disabilities to public places - and also for accommodating employees with disabilities in the workplace.

Although the ADA contains very specific guidance for physical accommodations, such as wheelchair access, it provides little guidance relevant to workers with diabetes.

The employment provision of the ADA applies to employers who have 15 employees or more.

The gist of the ADA is that it bans discrimination against a "qualified individual with a disability," which is 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 hires."

The ADA also prohibits discrimination based on a perceived disability, that is, when the employer wrongly assumes an employee cannot do a job because of a disability.

If employees are fired for legitimate work-related reasons, there cannot be an ADA claim, even if the employee happens to also have disability.

Defining disability

The ADA defines 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; (C) being regarded as having such impairment." The disability must also last at least six months and not be a natural, self- limited condition such as pregnancy.

The ADA does not protect those who engage in illegal use of drugs or the use of alcohol in the workplace. Employees with substance abuse problems may be held to the same standard of behavior as other employees. However, those who have successfully completed a rehabilitation program for drugs or who are currently enrolled in a program and not currently using drugs are protected.

Of note, courts have differed on whether alcoholism itself is a disability. Some federal circuit courts say it is; others have ruled that alcoholism is not a disability.

Is diabetes a disability?

Better asked, does diabetes fit under the ADA requirement as an impairment that substantially limits a major life activity? In general, courts look at this definition quite closely.

In Bragdon v. Abbott, the United States Supreme Court considered whether an asymptomatic disease - HIV - could be a disability under the ADA. The plaintiff's dentist refused to fill a cavity in the plaintiff's tooth, asserting that he did not have sufficient infection control equipment. The lawsuit was brought under the public facilities section of the ADA, but the test for disability is the same as in the employment section.

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