Deena is a certified nursing assistant in West Virginia who cares for a daughter with type 1 diabetes. She is the main wage earner of her family and works at a healthcare rehabilitation facility. Her daughter hasn’t been well, so Deena took time off to care for her under the provisions of the Family Medical Leave Act.
When Deena (last name withheld for privacy) returned, it was during the first wave of the COVID-19 pandemic, and the small state of West Virginia already had hundreds of cases of the highly contagious virus. She asked for paid leave from work because she didn’t want to potentially expose her daughter to COVID-19, and her doctor wrote a note to that effect. The
Deena’s request was denied.
“I was not only told no… but when I returned to work, I was put in the hall with the high-risk residents,” she said in a Facebook message. “I have since called HR and they want a new letter from (my daughter’s) doctor because the other one has since expired.”
Deena’s story, though fraught, is not unique in the midst of this pandemic. Even though the U.S. government has enacted new laws to protect workers’ health during the COVID-19 crisis, people with diabetes and others are discovering either that they aren’t covered by the laws’ provisions or that their employers are potentially misinterpreting or ignoring worker safety rules.
What they’re seeking is the option to work from home, even if that means temporarily changing responsibilities, or possibly an option to take temporary leave without losing their jobs. In the cases where workers still need to be physically present, they want formal guidelines and support for using PPE (personal protective equipment) on the job.
In an online forum for people impacted by type 1 diabetes, one woman shared that her husband with type 1 diabetes can’t secure paid leave and chose to return to work; another says her daughter with type 1 was forced to return to work at a supermarket; and another worries for her son who, after a bout of diabetic ketoacidosis (DKA), was required to return to work at a rehabilitation facility.
In short, there has been a surge in the number of people with diabetes seeking help with job discrimination issues. For the past two years, the American Diabetes Association (ADA) has handled almost 4,000 cases of potential job discrimination, according to Alana Tokayer, ADA director of Legal Advocacy. Over just eight weeks during the spring of 2020, the organization fielded over 550 job discrimination cases related to COVID-19, she said in a video posted on an ADA COVID-19-related online resource guide.
The New York-based Type 1 Action Foundation, which helps people in the type 1 diabetes community find resources to fight discrimination, has also seen a rise in inquiries about COVID-19-related job discrimination. Daniel O. Phelan, the organization’s CEO, said that many of the inquiries are from employees who have been terminated or otherwise discriminated against after informing their employer that they needed extra accommodations because of their heightened risk of serious complications from COVID-19.
Job discrimination cases are rarely cut and dry, and COVID-19-related cases are complicated by the fact that some jobs are considered “essential” during the pandemic, exempting them from some parts of discrimination law. However, that doesn’t mean people with diabetes or those who care for them shouldn’t explore their options if they feel unsafe, advocates say.
“You have legal rights, and these rights don’t go away during a pandemic,” Tokayer said in the video.
DiabetesMine reached out to our network of endocrinologists and diabetes specialists, who told us across the board they’re getting increasing numbers of requests for “doctor’s notes” requesting accommodations in the workplace. Most say they begin by offering a form letter that cites the CDC guidance on physical distancing and “underlying health conditions” as reasons for the patient’s special needs.
“Mostly I am getting requests to write the letter stating the diagnosis of diabetes as a chronic condition,” said Dr. Marina Basina, an adult endocrinologist at Stanford University School of Medicine. “There are more and more of these requests, unfortunately, as more people lose their jobs.”
Another endo, Dr. George Grunberger in Michigan, says his clinic uses a general template that is then personalized — without any knowledge of how these letters are being used or what criterion the employer may be looking for (unless a patient requests specific language).
“That brief letter just mentions that the CDC and the government issued guidance that diabetes constitutes an additional risk factor and thus we think it would be unwise to expose someone with diabetes to a potentially risky environment,” Grunberger says.
Several other endos also noted that while they are writing these letters more frequently, they haven’t been tracking any follow-up as to how employers are responding.
Here are the laws that might provide job discrimination protection for people with diabetes or their caregivers. For the purpose of this article, we’ve highlighted just the sections of the laws that might pertain to a health risk like a pandemic:
The Americans with Disabilities Act
Passed in 1990, this sweeping piece of legislation includes provisions that require most private employers, as well as state and local governments, to provide reasonable accommodations to help people with disabilities have or maintain the same employment opportunities as those without disabilities. Private employers with 15 or more employees are subject to this law. Changes to the law enacted in 2008 helped further define that people with diabetes are included in this protected status of people.
According to the ADA’s online resource on COVID-19 and job discrimination, “reasonable accommodations” during a pandemic may include:
- Providing the option to work from home during a health crisis
- Providing the option to be temporarily assigned to a vacant position that could allow for work from home
- Allowing temporary use of masks and gloves
- Allowing for temporary leave
The Rehabilitation Act
Though preceding the Americans with Disabilities Act, this act offers largely the same protections for people with disabilities. The main difference is that it provides protection to those working federal jobs or jobs that receive federal funding.
The Congressional Accountability Act
This law closes a loophole of the two laws above by providing similar protections for those employed by the legislative branch of the U.S. government — namely, Congress.
The Family and Medical Leave Act
This act can provide unpaid leave for up to 12 weeks each year for employees to see to their health or the health of a qualifying family member.
To receive the protections under this law, employees, in general, must be:
- Employed at a workplace that employs more than 50 people
- Work in a location where the employer employs more than 50 people within a 75-mile area
- Have been employed for the past year by the employer
- Have worked at least 1,250 hours in the last year for the employer (which translates to 24 or more hours per work, on average, in a year)
However, this law provides augmented protections in 2020, thanks to a new law passed during the COVID-19 pandemic (see below).
The Families First Coronavirus Response Act
This new law provides additional protections for some workers from April 1, 2020 until December 31, 2020. It includes several provisions:
The Emergency and Medical Leave Expansion Act
Employers with fewer than 500 employees are required to provide up to 10 weeks of paid leave under the Family and Medical Leave Act, in addition to two additional weeks of unpaid leave. This law covers most employees (with a few exceptions) who have worked 30 days or more and who must care for children who would otherwise be attending schools or daycare centers that have closed due to the pandemic. The 10 weeks of paid leave must not be less than two-thirds of the rate previously paid for the position.
The Emergency Paid Sick Leave Act
Employers with 500 or fewer employees must provide paid sick leave for up to two weeks of work for employees who:
- Are under community-wide quarantine orders
- Experiencing symptoms of COVID-19
- Have been told to self-isolate by a healthcare provider
- Are caring for a family member who is self-isolating, experiencing symptoms, or diagnosed with COVID-19
- Are caring for children who cannot attend school or daycare because of a COVID-19 health emergency
According to information provided by the ADA, the CDC has advised people with diabetes to stay home during the early months of the pandemic. This means that employees with diabetes (or those caring for someone with diabetes) could be eligible for two weeks of paid sick leave under the Emergency Paid Sick Leave Act.
Employees with diabetes can also take leave under this law if their physician has advised them to self-quarantine because they might be particularly vulnerable to the pandemic.
However, there are many different loopholes and exemptions to these laws. One exemption specific to this pandemic is that of “essential workers,” including many healthcare workers, whose employers can require that they come to work despite the provisions of these labor laws.
If you choose to fight for your rights, it’s important to know that the process takes a lot of time, says Type 1 Action Foundation’s Phelan. There are no quick-and-easy answers in court that can keep your paycheck coming in the short-term.
“It often takes many years to bring a disability discrimination claim to fruition, whether successful or not, and often at great expense,” Phelan tells DiabetesMine. “For starters, there are often various levels of administrative remedies that must be exhausted prior to filing a lawsuit.”
Many of these cases end up in some form of mediation through an appropriate government agency. It should also be known that a successful end to the process often results in a policy change, but little in the way of compensation beyond lost wages. It is rare to be granted judgement in court for compensatory damages for job discrimination, says Phelan.
Here is advice from Phelan and the ADA about what to do should you face job discrimination during the pandemic (or otherwise):
- Keep things civil. It is often easier to reach a successful resolution on a job discrimination case while still employed by the employer in question.
- Read your employee handbook to see what accommodations already may be available and what company processes may exist to request additional accommodations.
- Put your request in writing. Make it request-specific, and provide any documentation for needed medical information in that initial request.
- Make sure your healthcare provider only communicates with the employer in writing, and only provides the medical information necessary for the request.
- Contact the appropriate local, state, or federal agency that oversees job discrimination issues as soon as possible in the process, should your request for accommodation be denied.
- Make sure that all communication in regards to the request or job discrimination process is in writing, and take notes of any meeting about the process. Insist that any job-review information is also in writing, as employers often might find “other reasons” for an employee’s termination.
- Consider finding a compromise with an employer to your request.
The decision of whether to stay or leave a job that is not providing accommodations you need is a complicated and emotional one, especially during a pandemic. While this article provides initial information, you should discuss the issue with a lawyer trained in job discrimination cases and your healthcare provider.
For more information:
Contact the Type 1 Action Foundation, which provides help and resources (but not legal representation) for people with type 1 diabetes in job discrimination cases.