The Americans With Disabilities Act recognizes metabolic and endocrine disorders as disabilities for which employers are required to make reasonable accommodation for potential hires and employees. What concerns employers about diabetes most are complications, such as compromised eyesight, disorientation resulting from a hypoglycemic episode, and the need to reassign employees to give them time to recover from highs or lows.
Early in August, a jury in the U.S. District Court for the Southern District of Indiana rendered a $223,500 damages verdict against a township fire department which had terminated a ambulance paramedic with diabetes. The case isn’t as significant an illustration of the protections afforded employees under the law, as it is of an employer’s failure to work with an employee with diabetes in the process of determining reasonable accommodations.
Kristine Rednour, hired as a paramedic and ambulance driver, suffered four bouts of hypoglycemia in an approximate two-year period – two were serious enough to render her unable to drive during emergencies, and one left her unable to start an IV for a patient she was attending to during an emergency ambulance run. She was granted a light duty assignment period to adjust her treatment plan; she and her doctor were considering whether to adjust her pump’s basal insulin dose and to integrate a continuous glucose monitor (CGM) into her care. During that time, a firing letter came.
Your separation of employment is due to unsolicited discovery of medical events caused from your diabetes. The events were on duty, having a direct threat to you, your partner, assisting crews, patient care, and safety of the general public. Under ADA Title II, it is the Wayne Township Fire Department’s position not to cause undue financial and administrative burdens on other employees’ [sic], or the community. By doing so it would fundamentally alter the nature of our service, program, and activity’s [sic] being provided.
The complaint states, and evidence later presented corroborates, that the department’s chief, after having done some independent online research on diabetes, determined that people with Type 1 diabetes should never be hired by the department. Ms. Rednour “must have fallen through the cracks,” according to a statement attributed to the chief by another employee.
Public safety and health care personnel fall into a recognized category of workers who need high levels of physical stamina and mental acuity to properly and reliably carry out their duties. Rednour had begun to exhibit a pattern of performance, by one reading of the facts, indicative of her inability to meet requirements in her job description that she “safely and effectively operate emergency and non-emergency vehicles under all conditions” and be able to attend to patients. So why did her employer lose the case?
The answer, according to a statement given by Rednour’s lawyer to the Indianapolis Star, turns on whether the fire department had engaged in a required “individualized interactive process” to make an accommodation. A physician regularly engaged by the employer examined Ms. Rednour and prepared a report suggesting that a two-to-four week period of light duty, during which Ms. Rednour would adjust her pump to tweak her basal insulin dose, “could be a reasonable accommodation.” Ms. Rednour’s own physician had suggested she try a CGM during her light duty time, and offered to confer with the department’s medical officer, but the employer did not respond to the offer. Then, out of the blue, in apparent disregard of advice from the department’s consulting doctor and a second opinion solicited from an outside doctor, the deputy chief picked up his pen and fired Ms. Rednour.
Attorney Kevin Betz, who represented Radnour at trial, said in a telephone interview with Insulin Nation said that the fact that his client offered a “no-risk accommodation” which her employer dismissed before giving it a chance to work was a focal point in the trial. He added that the termination letter, and the opinion rendered by the department’s physician – suggesting light duty to allow time to adjust his client’s basal insulin dose – were other strong points in his client’s favor. The township’s lawyer did not respond to an invitation to comment on the verdict.
The idea of the individualized interactive process to explore reasonable workplace accommodation has been around in federal courts for at least fifteen years and, according to Mr.Betz, is “at the heart” of the Americans with Disabilities Act. It creates a shifting of the burdens of proof between employers and applicants or hirees. In these cases, it’s first up to an employee or prospective employee to establish evidence of disability and qualification for the job, and then that an accommodation was requested. The burden then shifts to the employer to show that an accommodation was unavailable, or that providing the accommodation placed an unreasonable requirement upon the employer.
Interpretive guidance for the particular regulations that govern reasonable accommodation envision that ”it may be a reasonable accommodation to permit an individual with a disability the opportunity to provide and utilize equipment, aids or services that an employer is not required to provide as a reasonable accommodation.” It seems as if the fire department’s doctor and Ms. Rednour’s endocrinologist had been looking right at this text when they wrote about light duty time to adjust basal dosing and to suggest a CGM. The employer then botched things by firing her before these adjustments could prove its potential worth.
Rednour has since gone on to work as an emergency room paramedic. During the trial, evidence was presented from co-workers that she was a skilled and valuable member of the fire department. It will never be known if the CGM, which could have given advanced warning of the onset of a low, would have been a reasonable further accommodation allowing her to continue to work as a fire and rescue paramedic. This decision shows, however, the peril of an employer not waiting to find out.
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