Employee Posing Safety Risk Created by Extreme Diabetic Episodes is Not Protected by ADA

August 24, 2009

A federal trial court in Iowa has held that a disabled employee with a history of unpredictable hypoglycemic episodes was not protected by the Americans with Disabilities Act (“ADA”), because the condition posed a direct threat to the health and safety of other employees at his employer's manufacturing plant. Onken v. McNeilus Truck & Mfg., Inc., 08-CV-2003 (N.D. Iowa July 10, 2009).

The ADA protects “qualified individuals” from discrimination based on a disability. An individual may not be considered qualified if that he poses a “direct threat” to the health or safety of others. “Direct threat” is defined as a significant risk of substantial harm to the health or safety of others that cannot be eliminated by reasonable accommodation. Determining whether an individual poses a “direct threat” requires an individual assessment to measure factors such as:

1. the duration of the risk;
2. the nature and severity of the potential harm;
3. the likelihood the potential harm will occur; and
4. the imminence of the potential harm.

Martin Onken filed a federal and state lawsuit alleging that his employer, McNeilus Truck & Manufacturing, had terminated his employment in violation of the ADA. From 1999 to 2006, Onken worked as a welder for McNeilus, welding small parts for vehicle tailgates and other equipment with a welding lead, an insulated copper cable that carries electronic current. He worked on a production floor that contained such equipment as cranes, welding machines, welding arcs, hot metal, torches and forklifts, in addition to the welding equipment he was responsible for.

Since 1985, Onken had suffered from Type I diabetes that caused him hypoglycemic, low blood sugar episodes. Unless Onken was having a hypoglycemic episode, he was considered a productive, efficient employee with good attendance. Generally, diabetics are able to recognize the early symptoms of low blood sugar, such as sweating, shakiness and cravings, and can raise low blood sugar levels through food or medication prior to a hypoglycemic episode. Onken’s diabetic condition, however, was unique in that he often did not have advance notice of an imminent episode, some of which were severe and lengthy. Consequently, he generally was unable to take preventive measures to avoid them. Onken was treated by many doctors and attended inpatient diabetes education programs at the Mayo Clinic in an effort to improve his condition and allow him to continue his employment.

During Onken’s employment, he generally averaged a hypoglycemic episode every several months. Although the severity of the episodes varied, he became belligerent, aggressive, threatening, abusive and disoriented on many occasions. During one episode, he threatened to kill a police officer. McNeilus employed several other diabetic employees who did not have the same difficulty as Onken in controlling their condition.

In July 2006, after a particularly alarming episode, McNeilus placed Onken on leave and arranged for him to complete a fitness for duty evaluation. The evaluating doctor found that Onken would not be a risk to himself and others if he was able to manage his diabetes without having hypoglycemic episodes. The doctor also found that, based on the number of historical episodes that had preceded the evaluation, Onken had great difficulty determining when he was becoming hypoglycemic and preventative action was necessary. The doctor found that Onken could return to work only if he monitored his blood sugar more frequently and suggested consulting an additional expert to further evaluate his historical failure to prevent the onset of hypoglycemic episodes.

After reviewing the medical evaluation, McNeilus determined that nothing further could be done to improve Onken’s situation, as he had historically been unable to recognize and prevent his hypoglycemic episodes. Consequently, McNeilus notified Onken that it was considering terminating his employment, but would entertain his suggestions or ideas as to accommodations. Subsequently, Onken suggested that the company allow him to test his blood sugar level more frequently. This accommodation was rejected because it had been tried unsuccessfully on numerous occasions and Onken was terminated. He filed suit against the company under the ADA.

The court held that Onken’s condition posed an objective, direct threat to the health and safety of employees at the plant. The plant production floor was full of potential dangers if Onken had an extreme episode. The court noted that during his long history of hypoglycemic episodes, Onken had been observed staggering near his work station, acting aggressively toward plant personnel as if he intended physical violence, and had become threatening and belligerent towards other employees. The court found that the company had made repeated efforts over a lengthy period to work with Onken to control his hypoglycemia. Based on these individual facts, the court dismissed Onken’s lawsuit, concluding the company had proven that Onken posed a direct threat to the safety of the employees at the plant and, therefore, was not “qualified” under the ADA.

Although this case supported the employer’s decision to terminate an employee under the “direct threat” standard of the ADA, certain limitations stand out. First, Onken’s episodes presented imminent harm to his fellow employees and were lengthy in duration. Second, the company worked exhaustively with Onken to find an accommodation before determining that termination was the only alternative. In addition, the company sought the advice of outside experts to evaluate Onken’s medical condition and job responsibilities and requested the employee provide his own ideas on how an accommodation could be accomplished. Only after this time-consuming, detailed analysis and evaluation did the employer determine that termination was appropriate.

Jackson Lewis attorneys are available to discuss the Americans with Disabilities Act and other workplace laws.