Islets of Hope  Is diabetes a disability?  What civil rights laws protect diabetics?

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Written by Lahle Wolfe

Source:  Publication PA-04-2006; Revised 12/06; Published by Islets of Hope, Diabetes and civil rights law: "An overview of your legal right to equal access to programs, benefits, opportunity, accommodations, education, and employment"  Read full publication (.pdf)

 

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In October of 2005 a class-action lawsuit was filed by four families in Northern California against California schools aserting that children with diabetes were protected under federal (and state) disability laws. In August 2007, California courts rendered a landmark decision by legally establishing that children with diabetes were disabled according to both state and federal legal definitions and therefore, are have protected rights under the Americans With Disabilities Act (ADA) of 1973 as well as the Individuals with Disabilities Education Act (IDEA).

 

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Diabetes and Civil Rights Laws
The Americans With Disabilities Act (ADA)
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The ADA prohibits discrimination on the basis of a person’s disability, which may include diabetes, in private employment, State and local government, the United States Congress, public accommodations, commercial facilities including restaurants, transportation, and telecommunications.  In addition to the ADA most states also have their own laws prohibiting employment discrimination on the basis of a person’s disability.  Some state laws apply to smaller employers than the ADA (the ADA laws apply to employers with 15 or more employees) as well as offer other protections in addition to those available under the ADA.

ADA Title I:  Employment

Title I prohibits employers and religious entities with 15 or more employees from discriminating against persons with disabilities in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship. Religious entities with 15 or more employees are covered under title I.  

Definition of a qualified individual with a disability under Title I

Having a disability alone is not enough to be protected by the ADA when applying for a job.  The applicant must also be qualified, and able to perform the essential functions of the job with or without reasonable accommodations.  Even under the ADA, an employer is not required to hire or retain a person with a disability who is not qualified to perform a job.

ADA regulations define a qualified individual with a disability as one who:

    "satisfies the requisite work, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation can perform the essential functions of such position." 

There are two basic steps in determining whether an individual with a disability is also "qualified" under the ADA:

  1. Determine if the individual meets necessary prerequisites for the job, including, but not necessarily limited to, education, skills, previous experience, training, licenses certificates, training, certificates, job-related requirements, such as good judgment or ability to work with other people, physical ability to perform manual labor tasks.
     
  2. Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation.
 

    Some key aspects of Title I of the ADA that may pertain to persons with diabetes include:

    Limiting the medical information that an employer can ask a job applicant during the application stage.  Employers may not ask questions about the applicant's medical condition or questions about the use of prescription drugs including insulin during the application process. 

    An employer may not require an applicant to take a medical examination before it makes a conditional job offer, or after a job offer unless all applicants are required to do the same.

    If during the application process an applicant voluntarily informs a potential employer that he/she has diabetes, the employer may only ask two questions about their diabetes:  if the job applicant needs reasonable accommodations and what those accommodations are. 

    After making a job offer, an employer may ask questions about an applicant's health (including asking whether the applicant has diabetes) and may require a medical examination as long as it treats all applicants the same.

    If an employer discovers that an applicant has diabetes they may not withdraw a job offer if the applicant is able to perform the fundamental duties ("essential functions") of a job, with or without reasonable accommodation, without posing a direct threat to safety.

The second step is determined first identifying the "essential functions of the job," that is, the major requirements of the job.  And second, by considering whether the person with a disability can perform these functions, unaided or with a "reasonable accommodation."

The ADA requires an employer to focus on the essential functions of a job to determine whether a person with a disability is qualified. This is an important nondiscrimination requirement because many people with disabilities can perform essential job functions yet are denied employment because they cannot do things that are only marginal to the job.  

For example, a receptionist position calls for “occasional light typing.”  Due to diabetic neuropathy, the applicant is not able to type very well.  Since the main or “essential” job requirement is to answer the phone, not typing, the person could not be denied the job.

If an individual with a disability who is otherwise qualified cannot perform one or more essential job functions because of his or her disability, the employers, in assessing whether the person is qualified to do the job, must consider whether there are modifications or adjustments that would enable the person to perform these functions. Such modifications are called "reasonable accommodations."


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