As with other issues surrounding all classes of discrimination, the problems have a tendency to fall into 2 categories: Legal issues and Practical considerations.
Whether a sufferer is looking for employment, or they are someone already in a position, diabetes can sometimes bring with it a variety of legal considerations and personal or practical issues.
- Legal Issues
When it comes to disability discrimination much of the law is now equitable whether you live in the U.S. Europe or other developed nations. This is particularly helpful when it comes to people suffering from diabetes prior to applying for a position because it gives them the opportunity to decide what to say, and more importantly, when.
When applying for a job legislation is clear; employers have no right to ask about your health status and neither are you under any obligation to offer the information. There are some occupational exceptions to this rule, but under normal conditions, the above legislation applies. If an employer inquires about your health you are entitled to ask if the position is exempt from discrimination legislation in respect of diabetes.
- Practical Situations
Often it is difficult to choose exactly when to tell a potential employer about your condition. Securing a job in a competitive marketplace is no easy task and few people want to bring possible negatives to the table at first contact. With this in mind most people suffering from diabetes opt not to discuss issues relating to their condition at least until they have secured a position.
However sometimes situations arise which necessitate personal judgment calls. It may be that you discover the work environment engages in security checks on staff and visitors to the building. Being embarrassed at work for carrying syringes and medication ,which might initially be misconstrued, is not something everyone would feel comfortable with. Depending on the nature of the work and the environment it might also be necessary to establish if there is an area available to check glucose levels or take medication,
The permutations, of course, are endless, and although legislation is in place which would enable you to overcome any future issues so there is no necessity to mention your condition prior to being awarded the job, some people would prefer to resolve them at the outset.
Diabetes and the Economic Burden on Employers
Although there are laws in place to prevent discrimination by employers there can be little doubt in the minds of many sufferers that a judgment, and often a financial one, can indirectly influence a potential employer’s decision to make a job offer.
Excluding direct medical costs it was estimated that in 2012 decreased productivity as a result of diabetes cost employers in the US $69 billion. Despite legislation being in place to both prevent and deter discrimination, in the real world diabetics are faced with employers who they are aware,will consider their condition and the possible implications when interviewing candidates for positions. However when it comes to profitability, most employers are also aware that the best person for the job, irrespective of any condition, will often present the opportunity to increase profits which will more than off-set any potential burden.
Additionally, the rising incidence of people with diabetes means that most employers will have to deal with both candidates and employees who suffer from the condition on a regular basis. In 2012 it was claimed that over 29.1 million people were suffering from diabetes in the US alone which is approximately 9.3 per cent of the total population. The clear indicators are that employers are not only regularly interviewing large numbers of candidates with diabetes, but also that they make up a large proportion of the workforce.
Employed Status: Legislation and Reasonable Accommodation
Once you are in employment then disability discrimination law protects you in ensuring that employers are obliged to make small, or reasonable, amendments to your work environment or schedule if they are necessary. Often people with diabetes require little if anything by way of accommodation in respect of their condition, however in some cases it is necessary to bring requirements to the attention of your employer.
For those recently employed a major issue here relates back to the question of ‘if and when,’ you should tell your employer about your condition, but the implications of not disclosing the information are clear: Your employer can only provide reasonable accommodation if he is aware you have a disability. If he does not, then obviously such changes cannot be enforced. Neither can your employer be accused of being discriminatory if he was not made aware you had a disability in the first place.
Essentially not telling your employer formally at any point means that you waive any rights, not only to reasonable accommodation, but to any future disability discrimination issues which might arise.
The personal safety implications relating to a failure to inform employers of your condition are clear. If colleagues are not aware of your condition the symptoms of a hypoglycemic attack may well go unobserved or even be misinterpreted. This can lead not only to delays in providing remedial care or calling for medical assistance, but it could also result in your condition being misdiagnosed and treatment being delayed. Some people feel it is adequate to inform only immediate colleagues of their condition and, although this might improve the feeling of security, issues could also arise simply because the informed persons may not be at work when symptoms develop.
Of course the above only takes into consideration the situation if your condition remains static. If there is a progression of symptoms, such as neurological implications then your requirements might change. Reasonable accommodation is often applicable later into the illness where employers might be required to make small adjustments to your working environment such as providing larger computer monitors or allowing the employee to be seated where they would normally be required to stand.
More serious employment situations can arise if the employee is considered, due to their illness, to be what is known as a ‘direct threat.’ In the US this can be a defense an employer will use against any accusation of discrimination. However the direct threat defense cannot be used without employers first proving that they have made reasonable accommodation for an employee. They must also prove that they have undertaken a risk assessment in respect of the individual concerned. This rules out the possibility of employers firing or disciplining an employee simply because they have had a hypoglycemic attack and the should this happen the employer would therefore be considered to have acted in a discriminatory capacity.
The term direct threat itself means that the employee must pose a significant risk either to themselves or to work colleagues. Additionally, the employer must also prove that the risk could not have been avoided had they made reasonable accommodation. For many workers with diabetes this provides an element of protection against discriminatory practices which leaves them feeling somewhat more secure in their work environment.
Medical Leave Entitlements
In the US at least, some diabetic employees are covered by legal entitlement to additional leave. This is achieved through what is known as the Family Medical Leave Act (FMLA). The Act covers not only the sufferer but also those who are known to care for a diabetic patient where it is required. FMLA provides that diabetic patients meeting certain criteria should be allowed up to 12 weeks of leave per year.
However the FMLA does not cover all diabetic patients and it is perhaps important to acquaint yourself with the general rules:
- No employee is entitled to the leave until they have worked for the same employer for at least 12 consecutive months. They must also have worked a minimum of 1,250 hours during those months.
- Only diabetics whose condition requires either hospitalization or at least 2 doctors visits per year, are eligible.
- Carers, for example parents with a diabetic child, are also entitled to leave in but only in certain situations such as an emergency.
- To qualify for leave you must inform your employer who will provide you with documentation which must be completed by your clinician. This documentation needs to provide specific details of why leave entitlement is necessary. The procedure and documentation for FMLA is quite rigid and should be adhered to.
Diabetes and Discrimination
Clearly the situation requires personal decisions to be made in light of legal considerations. One of the major issues which affects diabetic patients is whether to formally inform an employer about their condition and when to do it. If a patient elects not to tell an employer then this clearly means they waive rights to not only legal protection, but that they also may compromise their own health and safety. On rare occasions patients may also compromise the safety of their work colleagues.
However there are protections in place and, even if these can never overcome individual bias or ignorance of the condition, they do offer the diabetic patient the opportunity to secure employment and understand that they are entitled to both assistance and even redress if necessary.