On 1/30/17, a federal judge granted summary judgment to an employer on an ADA discrimination claim on the ground, among others, that the employee’s diabetes was not a disability under the ADA. The court reasoned that the employee had not produced evidence that the diabetes substantially limited him with regard to any major life activities. The case is Sanders v. Bemis Company, Inc. (E.D. Kentucky 1/30/17). The court noted that a number of other federal circuit courts have reached the same conclusion, and that in these cases “diabetes ordinarily fails to rise to the level of a disability under the ADA,” particularly where the diabetes only requires an employee to inject insulin daily, wear a pump and monitor blood sugar and make modest dietary and lifestyle changes.
No liability for failure to accommodate. The court also concluded that even if the employee’s diabetes qualified as a disability, the employer was entitled to summary judgment nonetheless. There is a reasonably complex factual background (just like many in ADA/FMLA cases). The court noted that the facility at which the employee worked had changed ownership several times during his employment. When the employee was first hired in 1986, he worked 8 hours shifts.
In March 2002, the facility changed ownership and the new owner altered his work schedule and required him to work 12 hour shifts. He submitted a physician’s recommendation that he work an 8 hour shift because of his Type 1 diabetes. The new owners agreed, and he was assigned an 8 hour per day shift of Monday through Friday.
Subsequently, the facility changed hands again, and the employee continued to work an 8 hour shift until June 2014 when the employer advised him that he would need to work 12 hour shifts going forward. The employee spoke to HR about his prior request for an accommodation and they indicated that prior HR files had been terminated when the current employer bought the facility. As a result, the employee submitted another letter from his new physician which requested that he be allowed to continue to work 8 hour shifts. In the letter, the physician commented that the employee was not substantially limited in any life activities as a result of his health condition. Because of this, the employer denied the employee’s request to work 8 hour shifts and required him to begin working 12 hour shifts, which -- the court notes -- he did without incident for several months.
Employee sues while still employed! The employee then filed a lawsuit against the employer alleging disability discrimination, among other claims. After the complaint was brought, the employee submitted a new physician’s note which recommended that he work only 8 hours per day and refrain from prolonged standing. The employee unilaterally began leaving his shift after 8 hours. The employer never penalized him for this action. Ultimately (after communications between counsel) the employer agreed to allow the employee to work 8 hours shifts on a rotating schedule that included some weekend days. The employee remained an employee while the lawsuit was pending with this schedule.
Request not to work weekends – a “personal preference” not a medically-required accommodation. The court rejected the employee’s failure to accommodate claim noting that the employer had allowed him to work an 8 hour schedule, the only accommodation recommended by his physician. The court noted that the employee was asking to have a schedule limited to weekdays and not weekends but the court commented that “this request appears to be [the employee’s] personal preference, rather than a necessary disability accommodation based on his physicians’ recommendations.”
Lessons for employers? Employers should be cautious about taking comfort in the court’s ruling that diabetes was not a qualified disability under the ADA. The ADA Amendments Act of 2008 (ADAAA) was intended to change the law to broaden the scope of qualifying disabilities. Further in a guidance on Diabetes and the ADA, the Equal Employment Opportunity Commission expressly stated the following: “As a result of changes made by the ADAAA, individuals who have diabetes should easily be found to have a disability within the meaning of the first part of the ADA's definition of disability because they are substantially limited in the major life activity of endocrine function. Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin, medication, or diet controls a person's blood glucose levels.” See https://www1.eeoc.gov//laws/types/diabetes.cfm?renderforprint=1
A better lesson for employers to take from this case is that courts will be more apt to rule in their favor where they treat employees fairly and favorably. For example, here, the employer did not discipline the employee when he began to unilaterally limit his schedule to 8 hour days. The employer also ultimately agreed to allow him to work the 8 hour days he had requested. Moreover, the employer and the employee had managed to peacefully co-exist even after he filed his lawsuit thereby avoiding liability for retaliation.