Slide 1:
Accommodating Diabetes in the Workplace
Shereen Arent, JD
Managing Director of Legal Advocacy
American Diabetes Association
1-800-Diabetes
www.diabetes.org

Slide 2:
Goals
For each person with diabetes to able to hold any job for which he or she is otherwise qualified

For each person with diabetes to have any reasonable accommodations necessary to protect his or her health on the job

Slide 3:
Key Legal Protections
Americans with Disabilities Act
Rehabilitation Act of 1973
Congressional Accountability Act
Family and Medical Leave Act
State Anti-Discrimination/Leave Laws

Slide 4:
Purpose of Anti-Discrimination Law:
To prohibit discrimination in employment against a “qualified person with a disability” 

To make sure that misinformation and fears about medical conditions don’t stand in the way of an employee getting a job he or she deserves and the employer getting the very best employee possible.

Slide 5:
Visual Image of Publication Titled:  Diabetes Goes to Court featuring Gary Branham who sued his employer, the IRS because his bosses said he could not go back to work because of his diabetes.
Too sick? 
Qualified and Direct Threat

Slide 6:
Too Sick?  Qualified and Direct Threat
1) Legal standard: qualified v. direct threat (an issue of burden of proof)
2)Qualified: Can perform essential functions of the job with or without a reasonable accommodation
3)Direct threat:  Requires proof that an employee poses a significant risk of substantial harm to self or others:
-that cannot be reduced below the direct threat level through reasonable accommodation.
-based on an individualized assessment supported by “reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence.”

Slide 7:
Can this person with diabetes do this job?
The three hallmarks of successful individual assessment are:
1) Individual job and the individual applicant – not blanket rules 
In most jobs there is no valid safety issue 
2) Expertise of both health care professionals with knowledge of occupational medicine and those with knowledge of the medical condition at issue. 
Include treating physician
3) Realizing there simply is not going to be one test and one cut-off score

Slide 8:
Can this person with diabetes do this job?
Importance of guidelines but make sure that the guidelines are appropriate to the specific job
Firefighters: National Fire and Protection Association
Law Enforcement: American College of Occupational and Environmental Medicine
Commercial Driving: Federal Motor Carrier Safety Administration exemption program

Slide 9:
Jury:  “Not a direct threat” (Not too sick)
So what went wrong?

Slide 10:
The “Document” Doctor
What information did he ignore?
Opinions of experts in diabetes
The Judgment of Mr. Branham’s endocrinologist
Information he received from Mr. Branham
Mr. Branham’s history of no diabetes problems
The opinions of Mr. Branham’s IRS Bosses

Slide 11:
Not a Direct Threat
Trial Testimony:  Dr. Charles Clark-“He is not a direct threat….risk is minuscule”
Dr. Cohen:  Could not disagree with Dr. Clark

Slide 12:
Sick Enough? 
Diabetes as a Disability
-Impairment
-Substantially limits 
-Major life activity

Slide 13:
Sick Enough: 
Diabetes as a Disability
-Individual assessment
-Understand diabetes
-Type 1 or 2
-Medications and their side effects
-Long and short term complications

Slide 14:
Sick Enough? 
Diabetes as a Disability 
What major life activities can impact people with diabetes?
Eating
Caring for Oneself 
Working
Thinking
Learning
Walking
Seeing	Manual Tasks
Reproduction	Etc.

Slide 15:
Jury:  “Has a disability” (Sick enough)
What went wrong?

Slide 16:
Chart contrasting Gary Branham’s Disability versus Average Person
1)	Constant Blood Sugar Vigilance  Branham Yes, Average Person No
2)	Monthly/Quarterly doctor visits and lab tests  Branham Yes, Average Person No
3)	Multiple Insulin Shots per day  Branham Yes, Average Person No
4)	Frequent Insulin Changes each day Branham Yes, Average Person No
5)	Side effects from Insulin  Branham Yes, Average Person No
6)	Multiple blood tests each day Branham Yes, Average Person No
7)	Calculate Food Quality and Quantity  Branham Yes, Average Person No
8)	Limit on type and quantity of food consumed Branham Yes, Average Person No
9)	Adjust food for insulin and diet  Branham Yes, Average Person No
10)	Adjust exercise for food and diet Branham Yes, Average Person No
11)	Adjust insulin for exercise and food  Branham Yes, Average Person No

Slide 17:
Reasonable Accommodations
-Employer is required to make reasonable accommodations such as:
-making existing facilities readily accessible
-job restructuring
-part-time or modified work schedules,
-reassignment to a vacant position, and modifying equipment  
unless doing so would cause undue hardship 

Slide 18:                                                                                                                                   
Reasonable Accommodations for People with Diabetes
Usually small, easy to accomplish, little or no cost to employer
Daily care:
-Time to check blood glucose and treat by administering insulin or food
-Place for blood glucose checking/treatment (work station except in rare circumstances)
-Consistent shift for some people
Responding to long term complications:		
-Larger computer screen
-Chair
-Avoiding walking long distances
-Part-time or modified work schedules

Slide 19:
The American Diabetes Association Four Step Response:
Educate
Negotiate
Litigate
Legislate

Slide 20:
Educate:
Inform workers of their rights 
Educate employers about diabetes and the rights of workers with diabetes
Provide resources for attorneys 

 Slide 21:
American Diabetes Association ADA Position Statements
Diabetes Care in the School and Day Care Setting
Diabetes Management in Correctional Institutions
Hypoglycemia and Employment/Licensure

Slide 22:
ADA Employment Discrimination Information for People with Diabetes
ADA Web Resources:
www.diabetes.org/advocacy-and-legalresources/discrimination/employment.jsp
Your Job and Your Rights
Information to help people with diabetes understand their rights in the workplace.
Federal Employment Laws affecting people with diabetes
Explanation of laws that protect workers with diabetes.
Diabetes Discrimination Success Stories
Legal victories by people with diabetes in employment discrimination cases.  
Commercial Drivers and Diabetes Discrimination
Information on the legal rights of commercial drivers with diabetes.
Fire Fighters and Diabetes Discrimination
Information on the legal rights of fire fighters with diabetes
Pilots and Diabetes Discrimination
Information on the legal rights of pilots with diabetes.
Americans with Disabilities Act Restoration Legislation
Information about the American Diabetes Association’s legislative efforts to amend the Americans with Disabilities Act’s definition of disability.
EEOC and Diabetes Discrimination Issues
Collaborative efforts between ADA & EEOC help to prevent discrimination against workers with diabetes.
Employment Discrimination Resources
Organizations that protect people with disabilities from discrimination and provide further understanding of legal rights.

Slide 23:
Negotiate
Collaboration with other organizations and government agencies
Develop standards for reasonable individual assessment to address “qualified/direct threat” issues
Provide attorneys with tools for successful settlements

Slide 24:
Litigate
Support for lawyers
ADA as an amicus curiae 
ADA as a plaintiff

Slide 25:
Legislate
Americans with Disabilities Act Restoration Act