No ADA Accommodation Leads to Seizure, Hospitalization for Diabetic Worker

Disability Discrimination:

Walmart manager’s unreasonable conditions for diabetic employee violated ADA. A Walmart meat-department employee with diabetes had always kept her testing kit close by at her desk in the work area. A manager ordered her to remove it to her locker, at a far end of the store. (There was no apparent significant reason for this direction.) The employee protested that she needed to frequently test her blood sugar, and she could not get to the locker soon enough to test and control her condition. Nonetheless, she was ordered to remove the test kit. Then she was told that if she left her work station to go to her locker, she would be fired. She could only test her blood sugar on breaks or lunch. Unable to effectively test and control, the employee soon had a major diabetic reaction while in the store’s meat cooler. She had a seizure and was hospitalized and unable to resume work at Walmart. Walmart defended by claiming she did not actually have a disability because she had always been able to perform all essential functions of her job. The court rejected this defense. The plaintiff had been able to do all functions until the manager’s direction and withdrawal of any accommodation made it impossible for her to successfully function. Berard v. Walmart Stores East LP (M.D. Fla., 2011).

Employer should have waited a little longer. A route salesman experienced dizziness, memory loss and pain due to a heart condition. His doctor stated that he should not drive. Thus, he could not perform his job of driving the route. He took a leave under the company’s six-month short-term disability program, and others covered the route. The doctor had not provided any estimate of ability to return to work. The company sent a notice of inability to hold the job open indefinitely and its intent to have a replacement (as allowed under the ADA for an “indeterminate leave”). However, the employee promptly replied that he expected to be cleared for work in 30 days. The company replaced the driver. In 30 days he was cleared for return, but the job was now filled. He sued under the ADA. The court found the company had acted too quickly. Once the employee claimed a 30-day return possibility, the leave was no longer “indefinite.” The company should have continued the leave and engaged in the interactive process regarding the reasonability of holding the job for another 30 days. Hutchinson v. Ecolab (D. Conn., 2011).

Uniform application and OSHA approval do not save overbroad medical inquiry. In response to a serious workplace accident, an employer created a mandatory certification process for all equipment drivers. This included a medical questionnaire form. One driver objected to the invasiveness of the questions. (Among other things, it asked for identification of any past illness or accidents, date of onset, all medications, etc.) He was fired for refusing to submit the form. In the following ADA case, the company defended by claiming: all drivers, whether with a disability or without, were uniformly required to submit the form; and OSHA had approved the questionnaire. Both defenses failed. The medical-inquiry sections of the ADA apply to every employee or applicant, not just to those with disabilities. A “uniform application” of an illegal form is still illegal. OSHA is not the agency with authority over the ADA. Any non-expert agency’s approval, whether OSHA, DOT or the IRS, means nothing regarding whether the form meets ADA requirements. Just as an expert plumber cannot certify a building’s electrical system, OSHA cannot certify anything for ADA compliance. The company may still present evidence to show the medical questionnaire was not overbroad and was consistent with business-safety necessity. Miller v. Whirlpool Corp. (N.D. Ohio, 2011).

Read “7 Things NEVER to Say to People With Disabilities” for tips on how to avoid disability discrimination charges.

Age Discrimination:

Seventy-year-old employee fired for allegedly attacking 65-year-old supervisor. An employee was fired after 57 years of employment. He claimed in his ADEA case that he was subjected to age-discriminatory comments by his coworkers prior to the discharge; they called him “old sick man,” said he was “too old for the job” and told him he should retire. However, there was no evidence the coworker comments had any effect on management’s decisions. Instead, the court believed the company had a valid reason for termination. The employee had an argument with his supervisor and struck or attempted to strike the supervisor. Further, there was no indication the company had any age biasthe supervisor was older than 60. Igaravidez v. International Shipping Corp. (1st Cir., 2011).

Legislative and Administration Action:

Fair wages under Americans with Disabilities Act would eliminate special pay certifications. An act introduced by Reps. Cliff Sterns (R-Fla.) and Tim Bishop (D-N.Y.) would end the special sub-minimum-wage programs for workers with disabilities. Currently, employers who apply for special certification can pay certain workers with disabilities less. The sponsors of the act state that it is no longer valid to presume that workers with disabilities are less productive and warrant unequal pay.

Read more legal articles here.

Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached

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