Diabetic Employee May Have Right to Snack on Employer’s Products as Reasonable Accomodation

Kollman & Saucier
Kollman & Saucier
04/17/2014

According to a federal court in California, a jury should decide whether the drugstore giant Walgreens violated federal law by firing a diabetic worker who opened a bag of chips during an alleged hypoglycemic attack without first paying for them.  EEOC v. Walgreen Co., No. 3:11-cv-04470 (N.D. Cal. Apr. 11, 2014).

Josefina Hernandez (“Hernandez”), a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an alleged low blood sugar attack.  Hernandez had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes.  Nevertheless, Walgreens fired her, even though she paid for the chips when she came off cashier duty.  Walgreens claimed that its policy is applied uniformly to all employees and is in place because it loses more than $350 million per year as a result of employee theft.  Notably, however, Hernandez’s store manager and other managers in her district were consistent in firing employees for theft regardless of their rank, employment history and/or the value of the items stolen.

The Equal Employment Opportunity Commission (“EEOC”) brought an action against Walgreens on behalf of Hernandez under the Americans with Disabilities Act (“ADA”).  The ADA prohibits disability discrimination and requires employers to make reasonable accommodations to employees with disabilities.  Walgreens moved for summary judgment, arguing that Hernandez’s disability did not provide her with cover from discharge for violating Walgreen’s “anti-grazing” rule.

Denying Walgreens’ motion for summary judgment, the court wrote that under Ninth Circuit law, worker misconduct resulting from a disability must be considered to be part of an employee’s disability.  The court held that the EEOC raised triable questions of fact on whether Hernandez’s disability was the cause of her prohibited “grazing” and thus whether her termination was causally related to her disability.  The court did not find convincing Walgreens’ argument that Hernandez failed to accommodate herself because she failed to bring candy to work to eat in the event of a hypoglycemic attack per her usual and authorized routine.

Ultimately, the court ruled that “whether Walgreens should have been required to ‘accommodate’ [Hernandez’s] stealing as a ‘reasonable’ accommodation is for the jury to determine.”  The result was that Walgreens did not and could not demonstrate that it had a legitimate, nondiscriminatory reason for firing Hernandez.  Accordingly, the EEOC was not required to prove pretext.

This decision reminds us again of the importance of training staff to understand how and when to accommodate employees with disabilities.  Though it might seem that Walgreens was just applying a uniformly enforced “no stealing” rule in this case, the fact of the matter is that the company ignored the ADA’s requirement that employers engage in a case by case analysis in deciding whether an accommodation is necessary for a disabled employee.

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