[acbny-l] Fw: Press Release: Alarming Rise In Diabetes Cases Poses High Risk of Increasing Legal Problems for Workers and Employers

From: "Frank Casey" <frcasey@xxxxxxxxxxxx>
To: "acbny acbny" <acbny-l@xxxxxxxxxxxxx>
Date: Fri, 12 Dec 2003 01:36:46 -0500
Greetings,

Below, please find an important press release which I'm sure anyone effected
by diabetes will find extremely interesting.


Beest regards,

Frank Casey
frcasey@xxxxxxxxxxxx


> > The following press release is forwarded to you by the Great Lakes ADA
and
> > Accessible IT Center for your information:
> >
> > Alarming Rise In Diabetes Cases Poses High Risk of Increasing Legal
> Problems
> > for Workers and Employers
> >
> > Diabetes cases are rising at an alarming rate in the United States,
> > particularly in New York City where health officials say "diabetes is
> > epidemic." And there is a troubling side-effect: the number of cases of
> > alleged discrimination against diabetics in the workplace is also
rising.
> > Some workers are getting dismissed because they are diabetics. New York
> City
> > employment law expert David Wirtz says now more than ever employees with
> > diabetes and their employers should be prepared to handle these cases
> > lawfully. He provides insight on how to proceed.
> >
> > NEW YORK, N.Y. (PRWEB) December 10, 2003- A soaring number of diabetes
> > cases, particularly in New York City where the health commissioner has
> > declared "diabetes is epidemic," is increasing the risks of legal
problems
> > involving charges by diabetics of discrimination in the workplace.
> >
> >      Workers with diabetes are complaining in growing numbers of being
> > unfairly treated on the job, even fired because of their medical
> conditions.
> >
> >      "Now more than ever, it is in the interests of employees and
> employers
> > to be perfectly clear about what they can and cannot do," said New York
> > labor and employment law expert David Wirtz of Grotta, Glassman &
Hoffman,
> > 650 Fifth Avenue.
> >
> > There are an estimated 17 million people in the United States aged 20 or
> > older with diabetes, and the number is on the rise. In New York City,
the
> > figures are significantly higher.
> >
> > Nearly 1 in 12 New Yorkers -- almost a half million people -- having
been
> > diagnosed with diabetes, the city's Department of Health and Mental
> Hygiene
> > said in a November, 2003 report entitled "Health Alert: Diabetes Is
> > Epidemic." The report also said about 250,000 more may have diabetes but
> > don't yet know it. In the past eight years, the department said, the
> number
> > of New Yorkers with diabetes has doubled.
> >
> > And the number of complaints charging discrimination in the workplace by
> > employees with diabetes is also rising, the federal Equal Employment
> > Opportunity Commission (EEOC) reported.
> >
> > The EEOC said that during the last five years, the agency has seen a 13%
> > rise in the number of charges filed under the Americans with
Disabilities
> > Act (ADA) alleging discrimination based on diabetes.
> >
> > Attorney Wirtz said the sheer size of the numbers raises the potential
for
> > misunderstanding the legal rights of diabetics in the workforce, and the
> > obligations and limitations of employers.
> >
> > "From the application stage to the on-the-job phase, there are specific
> > steps workers can take to protect their privacy, health and jobs, and
> steps
> > employers can take to ensure a safe and productive environment," said
> Wirtz.
> >
> > Wirtz said both employees and employers must be aware of their rights
and
> > responsibilities. For instance, employees should consider informing
their
> > superiors or persons they believe are acting unfairly toward them about
> > their diabetic condition and how it can be managed. On the other hand,
> > employers have to understand the consequences of questions about things
> they
> > have no right to know, and they must understand the fundamental
> differences
> > under New York State and federal disabilities laws.
> >
> > Wirtz, who has more than 25 years experience in the labor and employment
> law
> > field, formerly served as General Counsel to the New York City school
> > system, and is currently Adjunct at the Cardozo School of Law.
> >
> > Grotta, Glassman & Hoffman exclusively handles labor and employment
> matters
> > on behalf of employers. Its roster of clients includes Fortune 500
> > companies, educational and medical institutions and not-for-profit
> > organizations.
> >
> > The American Diabetes Association has catalogued hundreds of complaints
> and
> > lawsuits by diabetics in the workplace. Here is a random sampling:
> >
> > 1. An Air Traffic Controller Specialist sued the Federal Aviation
> > Administration (FAA) after he was removed from his position and later
> fired
> > because he began using insulin. The courts upheld the dismissal, ruling
> that
> > the controller was not able to establish pretext where he failed to
> provide
> > the information required by the FAA's protocol for individual assessment
> of
> > air traffic controllers who use insulin, despite numerous requests for
> > specific information over several years. Further, the courts found that
> > although later submission may have indicated his diabetes was under
> control
> > at one point in the long process that led to his discharge, there was
> > nothing to demonstrate stable control over a period of time. The courts
> said
> > he also failed to provide sufficient evidence that there were available
> > positions that he was qualified for at the relevant time. *
> >
> > 2. A caseworker, who is a diabetic and worked for the North Carolina
> > Department of Health & Human Services, was fired for failing to keep up
> with
> > his caseload. But a state court ruled he was wrongfully terminated. The
> > court held that insulin-dependent diabetes and related vision problems
are
> > "handicapping conditions" under the state statute making the employee a
> > "handicapped individual". The court further found that the employee's
> > failure to keep up with his caseload was directly related to his
> > diabetes-related vision problems and that employer failed to make
> reasonable
> > accommodations for employee's disability.**
> >
> > 3. A New York City subway maintenance worker wanted a promotion. The
> Transit
> > Authority required a physical exam. He complied, and the doctor found
his
> > diabetic condition was in "poor control." Even though he had worked for
> the
> > TA for 40 years with diabetes and received satisfactory job performance
> > evaluations, the worker was placed on restricted duty and effectively
> barred
> > from a promotion. He sued in Brooklyn Federal Court on grounds of
> > discrimination under the Americans With Disabilities Act (ADA) - and
won.
> > The court ruled his work record showed he was qualified and did not pose
a
> > threat of injury to himself or others. ***
> >
> > 4. A New Orleans police officer had diabetes and underwent coronary
artery
> > bypass surgery. He admitted he could not perform the essential functions
> of
> > his job as a police officer. His superiors told him the only job
available
> > was as a truck driver. But he was unqualified for this position because
of
> > his medications, and was dismissed. He sued the Police Department, but
his
> > case was dismissed by a Louisiana court that found the department had
made
> > "reasonble accommodation."****
> >
> > 5. A former assistant principal was fired by the Glendale Union High
> School
> > District near Phoenix, which had sought to reassign her from one school
to
> > another because of personal difficulties she was having with her
> principal.
> > The assistant principal objected publicly to the change, saying it would
> > worsen her diabetes. She sued under the ADA. A federal district judge
> > dismissed the case, but a a federal appeals court reinstated her
lawsuit,
> > saying the lower court had erred in ruling that the assistant principal
> > wasn't a qualified individual with a disability, and it added that there
> was
> > evidence adequately supporting a verdict that her "uncontrolled,"
> "brittle"
> > diabetes substantially limits her ability to walk because of the effect
of
> > physical exertion upon her blood glucose levels.*****
> >
> > 6. A New York school bus driver with diabetes was discharged by Laidlaw
> > Transit Inc. The company acted on the grounds that Department of
> > Transportation regulations deemed he was unqualified to drive a bus .
Both
> > sides agreed he was disabled, but disagreed on the firing. The driver
> sued,
> > charging discrimination under ADA. But the Federal Court in Manhattan
> > dismissed his claim, ruling that he was not     qualified and Laidlaw
was
> > not required to "reasonably accommodate him" because of his diabetes.
> ******
> >
> >
> > CITATIONS:
> > * Dyrek v. Garvey, 334 F.3d 590, 14 A.D. Cases 886, 26 NDLR P 77 (7th
Cir.
> > 2003).
> > ** N. Carolina Dept. of Health & Human Services v. Maxwell, 576 S.E.2d
688
> > (N.C. App. March 4, 2003)
> > *** DiPol v. New York City Transit Authority, 999 F. Supp. 309 (E.D.N.Y.
> > 1998).
> > **** Muhammad v. New Orleans Police Dep't, 791 So.2d 788
> > (La. Ct. App. July 11, 2001).
> > ***** Lutz v. Glendale Union High School, 8 Fed. Appx. 720 , 2001 U.S.
> App.
> > LEXIS 7766, 2001 WL 408989 (9th Cir. 2001)
> > ****** Christopher v. Laidlaw Transit Inc. 899 F. Supp. 1224 (S.D.N.Y.
> > 1995).
> > #
[acbny-l] Fw: Press Release: Alarming Rise In Diabetes Cases Poses High Risk of Increasing Legal Problems for Workers and Employers

Other related posts:
