Part 3 in a 4-part series
The Americans With Disabilities Act of 1990 was forced to undergo an overhaul after its shortcomings were exposed in a lawsuit (Sutton v. United Airlines) over whether bespectacled pilots were considered disabled. In the Supreme Court ruling on that lawsuit, diabetes was brought up as a key stress test for the law, as we examined in a previous article in this series. With the Supreme Court’s feedback in hand, regulators realized they needed to rework the law in general, as well as specifically address workplace discrimination protection for people with diabetes.
With the active participation of the American Diabetes Association, the 101st Congress overhauled the Americans with Disabilities Act in 2008, adding language to better address the complications of diabetes. The Equal Employment Opportunity Commission (EEOC) then overhauled its regulations and its enforcement and compliance guidelines for employers.
The new regulations more clearly defined the need for protection from workplace discrimination for several complications of living with diabetes, including: eyesight problems, diminished feeling in hands and feet, and the need to take time to test, administer insulin, or have a snack.
It then offered the best of both worlds in legal protection for people with diabetes. First, it clarified that even if a person with diabetes can successfully navigate the condition with medication, it doesn’t mean diabetes stops being a “disability” that deserves legal protection. Second, it states that having to deal with diabetes shouldn’t necessarily disqualify someone from performing the essential functions of the job. In other words, people with diabetes should not be disqualified from being hired just because they have diabetes, but they should be given the opportunity for special accommodations, if needed.
Moreover, the regulations took away the power of employers to medically paint all people with diabetes with the same brush. Medical exams and individual circumstances have to be considered on a case-by-case basis during the pre-employment screening process. An employer’s decision to hire or not hire must be limited to the specific requirements of the position and whether an individual applicant’s need for accommodations are reasonable from a business standpoint.
There are limitations to the Act, however:
- Small employers (15 employees or less) who are not engaged in interstate commerce are not covered by the federal law. They may be covered under corresponding state law, however.
- The Act does not guarantee coverage under employee group health or disability plans. Under the Act, an employee group plan may place limitations on coverage to address risk of loss.
- The Affordable Care Act of 2010 (Obamacare) requires plans to include certain disability-related medical coverages. However, the particulars of a plan are generally governed under state law or may be set in a collective bargaining agreement. Under Obamacare, however, no employer’s medical insurance plan is going to survive a legal challenge if it preemptively excludes or disqualifies people with diabetes.
- Finally, there is nothing in the Act requiring a workplace disability insurer to offer benefits for a person suffering an amputation not caused by accident, or to offer loss of limb compensation to an amputee newly applying for disability coverage.
In our final installment of this series on employment discrimination law, we’ll consider how to prepare to successfully navigate a pre-employment fitness-for-work examination.
Insulin Nation extends our appreciation to Daniel B. Korhman, Esq. of the AARP Foundation, for use of litigation and research materials essential to prepare this series.
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