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:
A Guest Post by Kriss Halpern
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.
Photo: Bernard Farrell
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.
Great post! Thanks! I have never had any issues with Type I diabetes on the job, but I have never been attracted to employment that involved driving. I’ve worked as a secretary and as a teacher, and am still employed as a teacher. I wear a CGM, and keep a box of Juicy Juice on my desk. I do recall an interview with a school superintendent back in 1994. It was to be my first-ever teaching job, and I inquired about the health insurance before signing the contract. The superintendent said “Why are you asking about the health insurance? Do you have some sort of medical condition?” I said to him “Actually, you’re not allowed to ask me that question, but since I have nothing to hide I will share with you that I have Type I diabetes, and keep it under very good control so that it does not interfere with my work. However, in order to keep my blood glucose levels as stable as possible, I need access to good health insurance.” I accepted the job, and left it two years later for reasons UNRELATED to Type I diabetes (or health insurance.)
Allison, what a great post! Very real issue for so many people and it’s great having someone from your own community actually on the front lines combating this type of situation when it arises. Kriss, thanks for sharing some of that information here and for sharing some of your own story about how diagnosis changed your career and life path and sent you in a different direction.
Very interesting post. It is indeed an issue that is not always talked about, but definitely exists. The community needs to lend support in such cases.
Great post! I have had type one since I was 5 years old and I am currently 21 years old. When I was 19 I got a job at a Coach store in Mishawaka, IN. During the interview for the job I told the store manager that I have type 1 and the manager did not seem concerned by this. When I was hired I spoke with management and my fellow employees about diabetes and that I may have times when I would need to step in back for 15 minutes or so to fix a low blood sugar. Everyone seemed okay with that. After about a month and half of working there I was working on a busy Saturday before Mothers day. I had a low blood sugar while I was working so I spoke with two managers who both denied me a break because we were busy. Angry isn’t even the word I felt when I was told no. I was in disbelief that because we were busy that they wanted me to risk my own health. To make matters worst one of the managers that told me no has a family member with type 1. I decided to ignore both of the managers and I left the store to get a juice becuse I was out of glucose tabs in my purse. When I came back to the store management did not let me sit down for a few minutes. I have always been a very tough person and decided that I would keep working and that I would speak with the managers at a later time when we were not as busy. Frankly by the time the shift was over I was too irritated to speak with them. I decided at that point to quit the Coach store. My mother and I spoke with the store manager about this incident and another incident that happened when my infusion set broke at work and my blood sugar sore to 500 and I was told I could not leave work to fix it! The manager told us that they were too busy to let me take a break or to leave the store. My mother responded by saying would you rather have an ambulance interrupt your store? The manager had nothing to say at that point. It was an awful experience with diabetes in the work place. Before that experience I thought I was a good advocate for myself, but now I can say that I will never let anything like that happen ever again. The only person advocating for me is me.
I was laid off a while back and am still searching for a job. (Unfortunately, I have a lot of competition for each job in the IT industry.) I have two related questions:
1) Most of the applications have a separate affirmative action survey they want you to fill out. Many times, it’s mandatory, but you can decline individual questions. I typically say no to whether I have a disability. Would that waive my rights under the ADAAA? Should I perhaps just decline that question?
2) I participate on several diabetes forums. I recently noticed a lot of my activity (under my actual name) on those forums turn up in Google searches? Should I be concerned that potential employers are covertly screening me based on that activity? I didn’t realize all this time that they were captured in Google, since I thought the message board were members only.
Thanks!
I just read the comments of Maggie and Joe D and had a few thoughts.
Maggie: What they did to you was obviously wrong and, in my opinion, unlawful. But this does happen to many of us and we are obliged to deal with these situations as best we can. It is, of course, even harder to handle this kind of thoughtlessness when you are low since you are obviously not at your best and may be unable to think properly. This is one reason why I generally think it’s a good idea, once hired, to let an employer, a manager, a friend at work, know of your diabetes so that if something like this happens it can be dealt with more easily and without the degree of difficulty you had to put up with.
Joe D:
1) I am a bit confused by the affirmative action forms you are describing. It sounds as if they are asking these questions in order to show they are interested in hiring someone with a disability. But I do not see how that makes it lawful to ask a question like that during a job interview. I could understand it being asked after the job is offered, but not before. There may be something I am not understanding. As for your question, my answer is: No, saying you are not disabled does not waive your rights under disability laws any more than it ends the fact that you have diabetes. A lot of us who have diabetes do not see ourselves as disabled and would not naturally say yes to a question like that. I suppose a certain kind of employer [thoughtless; aggressive; unfair] might use an answer like that against you if you ever tried to seek an accommodation for your diabetes, but i do not think that would be a battle they’d win because of your answer on that form. I would not worry about it.
2) I definitely think there are employers who check social network sites to investigate employees. Facebook and sites like this are easy for them to check unless the site is kept private. [Personally, I try to keep my facebook page private, but i have no idea if i know if i am always able to do it properly. For that reason, I’ve pretty much stopped using facebook. You can avoid identifying yourself on this site, of course, by the way you refer to yourself…as you did here in asking this question.
–kriss halpern
They do ask these questions separate from the application and say it’s voluntary in order to provide statistics for some federal regulation. The practice is very common. They all claim the interviewer/hiring manager never sees the survey results.
Almost nothing on my Facebook profile is publically viewable, so the recruiter would have to be a friend to view my personal details. However, discussions and profile data from sites like TuDiabetes and Juvenation are available to the public Google searches and I see no option on these sites to turn that off.
Excellent article and a big thank you to Mr. Halpern for all he does and has done for Type I diabetics. Hopefully, my seven year old son will not face any discrimination in the workplace when the time comes. The tools to manage diabetes continue to get better and better, so that should help tremendously with control. Also, I am so inspired by Mr. Halpern helping the Guatemalan people. It just reinforces that one person can make a a huge difference.
Even more frightening than the overt discrimination against diabetics that Maggie experienced is the covert discrimination that happens in the workplace. I have worked in HR for fifteen years, and I have diabetes. My first employer had an HR director who was a very decent and caring person, and my diabetes was never an issue because his number one concern was the welfare of his people. However, not all employers are like that. I have seen, and personally experienced, supervisors who know that discrimination is illegal and get around the law by creating bogus performance issues. In a job that requires judgement or independent action, like most supervisory or management jobs, it is easy for someone to say you did something wrong. Although a detailed review of the paper trail may prove otherwise, it is unlikely a higher power will take the time to do that review. Fighting against disguised discrimination like that is not easy.