November Is Diabetes And Epilepsy Awareness Month

(Published November 3, 2009)

This article was published in our free e-mail newsletter, Employment Law Today.

Generally speaking, diabetes and epilepsy are not obvious disabilities — that is, until an employee suffers a hypoglycemic episode or seizure.  When that happens, some supervisors let worst-case fears get the best of them and label the employee as incapable of doing their job, especially if they work around hazardous equipment.  Make sure your supervisors are aware that acting on unfounded assumptions about diabetes and epilepsy could result in an Americans with Disabilities Act (ADA) lawsuit. 

Case in point: Shortly after being hired to work at a Sonic Drive-In Restaurant, an employee was fired.  According to the Equal Employment Opportunity Commission (EEOC), the employee's manager fired her upon learning she had an epileptic seizure at home.  Consequently, the agency filed a disability discrimination lawsuit on the employee's behalf.  According to the EEOC, the manager told the employee that it was unsafe for her to work in the restaurant around knives, ovens, and other equipment.  The EEOC also alleged that the manager: 1) made no effort to determine whether the employee's medical condition would restrict or impede her ability to work in the restaurant, even though the employee had several years of previous experience successfully working in fast food restaurants, and 2) failed to explore possible reasonable accommodations.  The company agreed to settle the claim for $22,000.  (EEOC v. Ted Riley Corporation, d/b/a Sonic Drive-In, D.C. MS, No. 1:08-CV-0335-LG-RHW, 2009)

"[The employee] was performing her job successfully and should not have been fired," said C. Emanuel Smith, regional attorney for the EEOC's Birmingham Office.

EEOC Birmingham District Director Delner Franklin-Thomas added: "The ADA seeks to discourage employers from making employment decisions based on myths and stereotypes.  Employers should engage in the interactive process to determine whether the employee can perform the essential job functions and not act upon mere belief or suspicion."

Truly A Matter Of Safety?

Managers who take adverse actions against employees after learning they have epilepsy or diabetes often defend their actions by citing safety concerns.  While they may have the best of intentions, those intentions are only actionable if the employee poses a "direct threat."

In determining whether an employee presents a direct threat, the EEOC states that employers must evaluate the individual's present ability to safely perform the job based on objective evidence and reasonable medical judgment.  Consider:

• the duration of the risk;
  
  

• the nature and severity of the potential harm;
  
  

• the likelihood that the potential harm will occur; and
  
  

• the imminence of the potential harm.

If it is reasonably believed that an employee presents a direct threat to themselves or to others, request documentation from the employee's physician.  With the request, attach a job description with the essential functions highlighted and an invitation for the medical professional to come to the worksite to observe the functions being performed.

The EEOC stresses that the assessment cannot be based on generalizations or on unfounded fears, myths, or stereotypes about the condition.  Employers cannot automatically prohibit everyone with epilepsy or diabetes from working in a kitchen or around machinery, for example.  While some individuals may have a form of epilepsy or diabetes that is more severe and not as well-controlled, other individuals with these conditions know when a seizure or hypoglycemic episode will occur and can excuse themselves from hazardous situations as necessary.  Employers must evaluate each employee individually.
 
If you decide to take an adverse action against an employee because they pose a direct threat, you must be able to show that: 1) the harm is serious and likely to occur, not remote and speculative, and 2) the risk cannot be reduced by a reasonable accommodation.
    
Reasonable accommodation ideas are included in the EEOC's Q&A guidance on epilepsy and diabetes.