One of the many struggles of living with a chronic illness is balancing the obligations of the disease with the requirements of employment. Many PWDs walk a fine line between managing their diabetes properly and fulfilling their work obligations. And many employers are none too sympathetic with the plight of the diabetic, whether it’s accommodating glucose tests, breaks for low blood sugars or time off for doctor’s appointments. What’s a PWD to do? What rights do we have to when it comes to keeping ourselves healthy and able to bring home the bacon?
Kriss Halpern, known as the “Diabetes Attorney,” works as a licensed attorney in the State of California. He specializes in cases on diabetes, and he has a personal stake in the cause: he has had type 1 diabetes himself since he was in college. Kriss is a recipient of the Charles H. Best Medal for Distinguished Service by the American Diabetes Association and a Certificate of Appreciation from the United States National Institutes of Health. Here’s what Kriss has to say about keeping yourself protected on the job:
Diabetes is a disease that affects us each day of our lives. It can do so in ways we do not recognize at the time. It can do so in ways that are urgent and unmistakable, leaving us unable to function and in need of urgent action or even outside assistance.
The question of how diabetes impacts our ability to work, and whether diabetes is a recognized disability, subject to workplace protections, is inevitable given the role it plays, or can play, in our daily lives.
Improvements in diabetes management greatly impact these concerns. Mostly, those improvements make us healthier, and the disease easier to handle. But that is not always the case. For those of us taking insulin, it is the insulin we take that most often and immediately impacts our ability to function; not the disease directly, which alters or eliminates the insulin we produce naturally. Options available to us in the way insulin is delivered, and our ability to recognize insulin’s impact on our body, have vastly improved in recent years. The tools we use to achieve those improvements are powerful, and are subject to their own risks. We need to learn to recognize those risks and manage those tools safely in all aspects of our lives, including the workplace. Employers have an obligation to allow us to do so.
It is unlawful for an employer to ask us if we are disabled in some way during the job application process. Under no circumstances is that ever proper. But that does not mean diabetes is never an issue an employer may properly ask about, and it does not mean those of us with diabetes are able to handle all jobs safely. The number and type of jobs that cannot be handled safely have greatly decreased. Jobs that would have been impossible for us to handle in years past can now be readily and successfully performed, so long as we know how to manage our diabetes and are able to avoid, recognize, and handle insulin issues that may arise. An employer has a right and even need to know about these issues, as well as an obligation to provide reasonable accommodations that let us perform our jobs safely despite them.
Once a job interview is completed, an offer may be made pending health review. For example, an applicant may readily qualify as a police or fire officer, but still need to go through a health review before a job offer is made. This is proper and lawful for any job where there is a direct relationship between health issues and the ability to perform the job.
It does not mean that health issues are a legal basis of inquiry for all jobs. If, for example, an employer is hoping to hire a long-term employee, someone to work with the business for many years, that does not give them the right to inquire about health issues in order to make some hypothetical decision about the applicant’s imagined likelihood to be around in the distant future. Nor does the employer have a right to inquire about health issues because the business has concerns about adding a person with a chronic illness to a small health insurance plan. These may be logical and significant concerns for the business, but that does not make asking an applicant about health issues lawful, and basing employment decisions on them permissible.
Asking such questions, following an offer pending health review, is only lawful if there is an actual relationship between the health issue inquired about and ability to perform the job.
There is no question that insulin can affect safe driving. A business that hires people where driving is a required job duty clearly has the right, even the obligation, to ask if the job applicant or current employee is taking insulin and able to drive safely. Insulin can cause a driver to experience a low blood glucose event that prevents safe driving. A decade ago, taking insulin almost automatically meant a person would not qualify for a job as a commercial truck driver. Drivers with Type 2 diabetes were commonly refusing to take insulin recommended by their physician so they could keep a job. Their blood glucose was often extraordinarily elevated and clearly causing long-term damage, but at least they were employed and able to survive in the meantime.
Because improvements in care, and in government regulations which now take those diabetes management improvements into consideration, have changed, that scenario is no longer necessary in many cases. It is possible to show that a person’s diabetes is managed safely so that the employee is not a driving safety risk.
The review of the employee or applicant must be made on an individual basis. Blanket rules without individual considerations are unlawful under both the federal Equal Employment Opportunities Act, and State laws such as California’s Government Code Section 12926.1, which define diabetes as a disability subject to government protection, require employers to avoid prejudicial actions taken on the basis of a chronic illness such as diabetes.
Proving the ability to drive a commercial vehicle safely while on insulin is not easy, but it can be done. Critical, of course, is having a physician who agrees that the patient is able to drive the requisite vehicle safely. Forms need to be filled out; tests must be passed. But it can be done, and that is better than where things stood in years past. The idea that a truck driver must live with dangerously high blood glucose in order to keep a job is no longer an absolute. In time, that will likely be a relic of antiquity that few people recall.
Several years back I represented a Type 1 pilot of a ship. He learned to use a Continuous Glucose Monitor while sailing his vessel so that he would never go low while working. He used two CGMs simultaneously while sailing so that if one stopped functioning he would have the other as a backup. He alternated the time when he changed catheters for added protection against both devices failing. That way, there would be no emergency from a catheter needing to be changed while he was piloting a ship without interruption for an extended period of time. He kept his pilot’s license and is working safely while using this system.
I was diagnosed Type 1 as a sophomore in college. At the time, I was News Editor of my college paper and working on the side for another daily newspaper in Boston. My dream was to be a foreign war correspondent. After diagnosis, my endocrinologist talked with me about career goals. He told me it would make no sense for me to plan on being a war correspondent as I would be putting my own life at risk and even those around me who might need to help me if I experienced a low blood glucose event or ran out of insulin in those circumstances. I ended up going to law school.
A few years after I began practicing law, I left my job at a large law firm so I could go to Guatemala to help prove that refugees from that country were fleeing in fear of military atrocities taking place. The first time I went to remote jungle areas to find evidence about human rights abuses was in 1989, when the U.S. State Department was denying there was danger in these areas and deporting refugees back.
I witnessed the reality and returned with photographs and interviews of the daily killings and atrocities taking place. My work ended up helping win political asylum for scores of refugees; the former Immigration and Naturalization Service eventually relied on me as an expert in assessing safety risks for refugees and the truth of their claims of discrimination. I returned to Guatemala twice more to research and uncover evidence about what was happening in a then terrifying, if gorgeous, land. I did so while taking insulin. I did so safely and without putting myself or anyone else at risk because of it. In essence, I was able to fulfill the dream I had had as a teenager and prove it could be done.
Part of my work now is devoted to helping others fulfill their own work goals — to prevent diabetes from standing in the way. We have a serious illness that is not soon going to go away, but that illness should not prevent us from fulfilling our dreams — not in work, not in any other part of our lives. We can do it. The law can be used to make it happen.
Have you faced discrimination at work because of your diabetes? We would love to hear more stories about how you overcame the challenges and successfully advocated for yourself.