07/31/2014 01:28 pm ET Updated Sep 30, 2014

The Hypoglycemic Employee and the Law

An 18 year Walgreen's employee having a hypoglycemic attack ate a bag of potato chips without first paying for them or requesting permission to eat them. She was fired and the Equal Employment Opportunity Commission (EEOC) sued Walgreens, alleging an Americans With Disabilities Act (ADA) violation. Walgreens had previously provided the employee diabetic accommodations including allowing her to keep candy, keep insulin in the break room refrigerator, and take breaks to test her blood sugar. However, Walgreens had a strict antitheft policy. The ADA requires employers to provide reasonable accommodations (unless undue hardship) to disabled employees. A federal District Court decided that a jury should be allowed to determine if the employee's termination was related to her disability (EEOC v. Walgreen Co.). Facing potential punitive damages, Walgreens settled the case.

A LexisNexis review of reported hypoglycemic employee court decisions in the last six months indicates that ADA claims frequently are unsuccessful.

The following list briefly summarizes the reasons that employers prevailed in cases mentioning hypoglycemia:

. The employee failed to mention hypoglycemia to a supervisor investigating an incident of misconduct.

. The employee was properly fired for theft and defacing company property and additionally failed to accept a reassignment.

. A jury determined that an erratic work schedule in a safety sensitive position meant that the employer could not accommodate a request for three regularly scheduled meals.

. The employee was terminated for non-discriminatory workplace infractions.

. The employee voluntarily resigned after an isolated incident when she was not allowed a meal break, and failed to provide evidence that her diabetes limited major life activities.

. The employee driver failed to properly appeal his denial of a license by the Department of Transportation and was consequently unable to meet the job requirements.

The Walgreens case is unique in that the hypoglycemic attack and taking the chips occurred at the same time. Walgreens was unable to cite precedent court decisions that the District Court believed to be relevant. How a jury might have viewed the taking of the chips and subsequent termination is unknown. Was there a business necessity to fire this employee in the same manner as any other employee who committed theft? Should the employee have requested permission before eating the chips? She asserted an emergency. Additionally, when the employee attempted to pay for the chips was one of several disputed facts. If a jury determined that Walgreens acted with malice or reckless indifference to federally protected rights, it could assess punitive damages.

Employees with potential hypoglycemia that is unknown to the employer must communicate their need for workplace accommodations. Adequate medical evidence must be presented to an employer or a court in the event of litigation. If government required licensing is necessary, exhaust all administrative appeals if a license is denied. If an employee has engaged in misconduct unrelated to the disability, an employer may, consistent with workplace rules, terminate the employee. Disability cases require that both employer and employee retain experienced legal counsel.