Disability law doesn't cover diabetes
Published 07/30/04

A diabetic worker may not be protected by federal employment disability discrimination law.

This point was illustrated in the case of Stephen C. Orr v. Wal-Mart Stores, Inc. decided in the 8th Circuit Federal Court of Appeals on July 22, 2002. The United States Supreme Court on May 24, 2004 let this appeals court decision stand.

In that case, Stephen Orr filed a lawsuit against Wal-Mart Stores, Inc. alleging violations of, among other things, the American with Disabilities Act (ADA) when he was fired as a pharmacist. Orr is a diabetic and to control his diabetes he uses a glucometer to monitor his blood glucose levels, takes insulin and eats a special diet within 30 minutes of taking insulin.

While working at Wal-Mart Orr injected insulin three times a day – early in the morning, at noon and before bedtime. Orr controls his disease to the best of his ability and when it is not well controlled he suffers from vision impairment, low energy, lack of concentration and mental awareness, lack of physical strength and coordination, slurred speech, difficulties typing and reading, and slowed performance.

This lawsuit arose from a requirement by Wal-Mart that Orr as the single pharmacist at the Wal-Mart store was required to work his entire ten-hour work shift from 9:00 a.m. to 7:00 p.m. without having an uninterrupted lunch break even though previously Wal-Mart had allowed him to have a half-hour uninterrupted break where he would actually close the pharmacy for thirty minutes over the noon hour to eat lunch. Orr ultimately refused to follow the policy of keeping the pharmacy open during his lunch break claiming that not having an uninterrupted lunch break could adversely affect the control of his diabetes and he was fired.

A disability under the ADA is defined as a “physical or mental impairment that substantially limits one or more major life activities of such individual.” The Court noted that a diabetic is not per se disabled but must demonstrate his condition substantially limits one or more major life activities and that a person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently substantially limits a major activity. A disability exists only when the impairment substantially limits a major activity not where it might, could or would be substantially limited if mitigating measures were not taken.

Since Orr’s diabetic impairment is corrected by medication and other measures, Orr was found not to be disabled and therefore not afforded ADA protection.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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