Tuesday, August 14, 2012

Workplace Rights

I was recently asked to speak to my Dallas/Ft. Worth insulin pump support group about our rights in the workplace as people with diabetes (or caregivers of people with diabetes).

I'm not a legal expert, but I am always an advocate for people with diabetes. I've seen firsthand what it's like to deal with colleagues or supervisors who don't understand what we need in order to effectively juggle a job and a temperamental chronic condition.

Thanks to the American Diabetes Association's pages on discrimination and the Department of Labor's site on FMLA, as well as the helpful advice of an FMLA leave administrator, I'd like to relay what I've learned. I have tried to summarize, but I highly recommend searching these sites for more thorough information and additional resources.

Discrimination

Unlawful discrimination could be considered any of the following:

  • Failure to hire or promote you to a position on the basis of diabetes
  • Termination on the basis of diabetes
  • Failure to provide reasonable accommodations for your diabetes
Disclosure
  • You do not have to disclose your diabetes during the hiring process.
  • You do not have to disclose your A1c or any of your medical history to your employer.
  • After a job offer is extended to you, if your field is among those requiring medical exemptions (emergency services, commercial driving, etc), you may be asked to submit a waiver, undergo an exam, and be subject to specific blood sugar targets during the performance of your work. The only position for which a person with diabetes may not apply is first-class commercial pilot. In the United States, you may, however, obtain a third-class pilot's license.
  • Your employer may not disclose to others that you have diabetes.
Hypoglycemia

You cannot be fired for having hypoglycemia on the job without your employer first conducting an individual assessment to determine the safety risk you pose and/or without consideration of whether or not there are any reasonable accommodations that could eliminate the safety risk.

You are held to conduct standards, however, and could face discipline for behavior associated with an insulin reaction. This disciplinary action is often to ask you to undergo a medical evaluation. If you are evaluated by a doctor other than your usual prescribing physician, your physician's suggestions should still be respected.

Reasonable Accommodations

Reasonable accommodations are afforded to you under the Americans with Disabilities Act if you are employed by a company with 15 or more employees. These are often minor changes in the workplace environment enacted at little or no cost to the employer. If these requested accommodations would cause your employer undue hardship in difficulty level or expense, your employer is not required to comply.

Your employer may not disclose to your co-workers why you are receiving accommodations. Your employer should instead instruct your co-workers as to how they can make requests according to office policy and insure them that their privacy would be respected for such requests as well.

To request accommodations, you should be prepared for what is commonly referred to as a flexible interactive process, meaning that it is an ongoing negotiation between you and your employer. First, consult your employee handbook to determine if there is pre-existing protocol for making a request. Next, schedule time to discuss your needs with your employer. Keep a written record of all communication on these points. Be prepared to suggest a trial period for accommodations for which they express concern. Be aware that you may be asked to produce a written explanation from your physician as to why you need a specific accommodation.

Common examples of accommodations (from the ADA website) for people with diabetes might include:
  • breaks to check blood glucose levels, have a snack, take medication, use the restroom
  • a place to rest while blood glucose returns to normal
  • convenient access to food or drink or diabetes supplies during work hours
  • the ability to check blood glucose levels and/or administer insulin anywhere in the office
  • alternately, if it is your preference, a clean, private place to check BG and take insulin
  • modifications to any no-fault attendance policies
  • modifications to work schedule, such as standard shift choice over swing shift
  • if not covered under FMLA, leave to seek medical training, treatment, or for recuperation
  • for those with neuropathy, a place to sit rather than stand
  • for those with diabetes-related eye issues, visual assistive devices such as large-screen monitors
FMLA

The Family and Medical Leave Act provides 12 weeks of unpaid leave for the care of yourself or a family member. It is provided to employees who have worked 1,250 or more hours over 12 consecutive months for a company that employees 50 or more people (within 75 miles of one another).

Intermittent FMLA allows you to use portions of your allotted 12 weeks in chunks of a few hours or a few days, etc. According to my friend Jessica, a former FMLA administrator with a major third party carrier, diabetes is one of the most frequently cited reasons for use of intermittent FMLA! It's there for you to use to deal with the time that diabetes takes away from your work without you being penalized for it.

Your FMLA leave may be administered by a third party company or it may be handled in house by your company's HR. In either case, there are certain protocol you will be expected to follow.

You will be asked to have your doctor (or your child's doctor) submit a medical certification.

You have 15 days after your day of leave to file your FMLA paperwork. If a mistake is found in it, you have an additional 7 days to find and correct the missing information. Once that paperwork is submitted, your employer has 5 days in which to respond to the submission.

In requesting to use your intermittent FMLA, you should be as specific in your expectations as possible. Too vague would be "I have diabetes and sometimes I will need time off." Preferable would be "In the last six months, I had to miss work three times due to insulin reactions and two days for my endocrinologist's appointments in the city. So I expect to need to use 1 day per month of my intermittent leave." Jessica tells me that your leave administrator is not asking you to predict the unpredictable, but rather, give them as clear a picture as possible of how you expect you might need to use your FMLA intermittently. She says that it is in this step where people often trip up.

In the event that you have a foreseeable absence (like an endo appointment), you must give your employer 30 days notice. If you fail to give 30 days notice, your employer may not deny your request, but they can ask you to delay your appointment 30 days from the date in which notice was actually given. For absences you could not forsee, such as a debilitating low blood sugar or spending the night in the hospital, you should notify your employer and FMLA leave manager as soon as realistically possible.

Jessica also stresses the importance of communicating with your leave administrator. Report absences to your leave admin as well as to your employer, as it's not your employer's responsibility (depending on company policy) to report your absences. Ask questions of your leave coordinator. They are there to help you, she says. Call and discuss your company's policies with this person. Make certain you're following protocol in regard to using your intermittent FMLA.

Firing & Discipline

You cannot be fired because you are a perceived safety risk. If you have had an episode on the job that raises concerns about your safety risk, you can be asked to undergo a medical evaluation as a disciplinary action. You can also be asked to undergo an evaluation in regard to a specific accommodation you've requested.

If you feel you have been terminated on the basis of diabetes, first, contact the American Diabetes Association. Second, file for unemployment benefits. You should also file a discrimination complaint with the Equal Employment Opportunity Commission.

To speak with a legal advocate with the American Diabetes Association about your rights, call 1-800-DIABETES. You will be asked to submit forms that have to be mailed back. This can be a lengthy process, so start right away. All discrimination complaints are handled at the national office, so do not call your local ADA affiliate office.

In Closing...

Remember that the only thing you can't do as a person with diabetes is make your own insulin. There are advocates (legal, government, and social) who want to help make your challenges easier. Don't accept mistreatment at the hands of ignorant colleagues with outdated information.

I always assume that I am an advocate for the next person you'll meet with diabetes. How you see me handle my challenges and what you see me able to accomplish makes you less likely to judge the next person with a pump who walks into the room. If we fight for our rights in the workplace, prove our worth as employees with just a little bit of accommodation to allow us to thrive, and get on with our responsibilities, we prove to those around us that diabetes doesn't throw roadblocks on our career paths.

So maybe the next employee with diabetes can be just another employee.

3 comments:

  1. Rock ON, d-sisterfriend. What a great post, so necessary for *all* of us, even if we don't need it right now. Thanks for sharing this!!

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  2. Awesome and most helpful post, Melissa! You rock. Thanks so much for doing research for us all and spreading the word!

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  3. Awesome resource, thanks for putting this together!

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