Monday, October 9, 2017

Court Awards Employee $1.5 Million for Failure to Accommodate Diabetic Needs

Let’s say you have an employee whose job requires a significant amount of driving. Additionally, let’s say that this employee has told you that he is diabetic and has asked to be allowed to keep food in his company vehicle in case he has a drop in blood sugar, despite the company policy that drivers are not allowed to eat or have food in their vehicles. What should you, as the employer, do?

It seems obvious that an employer of a diabetic employee who drives the company vehicle for his job should be allowed flexibility in the rules about eating and having food in their vehicle. It seems to be a pretty reasonable accommodation.  Nevertheless, DHL Global Forwarding (the delivery company) denied the request by one of its employees to have the ability to either stop for food or keep food in his vehicle to eat if he began to suffer the physical effects of a drop in blood sugar – such as dizziness and blurred vision – which are never good, and even worse when your employee is driving! The company denied the request, pointing to their “no food” policy, suspended him once when he was discovered to have stopped for food, and fired him when a supervisor observed him parked for over 15 minutes when he should have been driving. When asked where he was during that time, the employee reported that he was doing some paperwork. Later, the employee said in addition to the paperwork, he was beginning to feel dizzy and stopped to drink sugar water to correct low blood sugar. The company’s records revealed that he did send some documents during the time he was stopped.

You can probably guess that the company fired him for lying and “theft of time” for being on the side of the road during his work time. The employee sued and last week obtained a $1.5 million verdict! Granted, this all happened in California, and the verdict might not be so large in Illinois, but the lesson for employers to learn is the same. 

First of all, employees who drive and have medical conditions which can cause episodes of diminished alertness (epilepsy and diabetes come to mind) must be addressed from both a safety and ADA perspective. If an employee discloses such a medical condition, it may be appropriate to send that employee for a medical evaluation by a doctor selected by the company. The ADA allows employers to demand a medical evaluation of an employee with a disability when safety is a question. Secondly, assuming an employee with this type of condition is safe to continue driving, work with that employee to determine a reasonable accommodation. Courts, like the one in this case, are likely going to find that a brief stop for food or keeping food or a sugary drink in the company vehicle, despite a policy prohibiting this, is a reasonable accommodation. To avoid abuse of the accommodation, and we imagine that DHL believed that the employee was using his diabetes as a cover for his goofing off, it is appropriate to place controls on an employee’s ability to take a food break. For instance, it is appropriate to require the employee in that situation to call his supervisor when he needs a food break and when he is ready to get back on the road. Similarly, for diabetic workers, depending on the degree of control of their condition, a great deal of the issue might be solved by scheduling food breaks to avoid most physical episodes on the road. The lesson is that it is always better to work to a reasonable accommodation if possible as opposed to facing a $1.5 million verdict!