Know Your Employment Rights

 

Workplace discrimination is a big issue if you have diabetes. Caroline Wood looks at employees’ rights and responsibilities in New Zealand.

Some of the work-related questions and comments Diabetes NZ has received from it’s members

Some of the work-related questions and comments Diabetes NZ has received from it’s members

More than one in ten Kiwis living with diabetes say they have been discriminated against at work because of their condition, especially those who are insulin dependent.

Diabetes NZ, which commissioned a diabetes stigma survey last year, said people with type 1 diabetes were the most affected with 18% of respondents saying they had been discriminated against in the workplace.

A further 8% of working age adults with type 2 diabetes also reported discrimination by their employer because of their condition.

“Discrimination is an extreme form of stigma. With so many people affected, this is an alarming statistic when, barring a medical crisis, there is nothing about diabetes that affects a person’s ability to work,” says Heather Verry, Chief Executive of Diabetes NZ.

“Given that there are so many Kiwis with the condition, it stands to reason that many thousands of them make positive contributions in the workforce every day. This is more likely if others support them with understanding and empathy.”

Diabetes NZ supports members with advice on their workplace rights and also helps employers who want practical guidance on how to support employees with diabetes.

“We encourage employers to find out as much as they can about diabetes and what it is like to live with a lifelong condition,” adds Heather.

People with both type 1 and type 2 diabetes are protected under the Human Rights Act 1993, which says it’s illegal to discriminate against anyone with any form of disability subject to certain exceptions. Having diabetes is considered a disability under the Act. Below we summarise the protections, rights and responsibilities of employees and employers in relation to diabetes in the workplace in New Zealand.

You should be able to work with diabetes

In most cases employers cannot discriminate against you because you have diabetes – they can’t refuse to hire or promote you, and they can’t fire you because you develop it.

Under the Act, “discriminated against” means a person’s employment cannot be terminated and they cannot be disadvantaged or subjected to detriment in their employment by reason of their disability.

However, there are some exceptions to that. The first of those is where the person cannot do the job safely because of their disability.

For example, if you regularly have uncontrolled hypos (low blood sugar) while operating heavy machinery.

If, because of the work environment, or the nature of the duties, there is a risk to the individual or to others, then an employer may be able to discriminate on the basis of the disability, including terminating employment.

First, however, the employer must consider whether there are reasonable measures that it can take to reduce the risk to a normal level (and if there are, to take those).

Another exception is where the employee can only perform the duties with the aid of special services or facilities, and it is not reasonable to expect the employer to provide those.

This will depend on the particular facts of your situation. The size and resources of the organisation, the nature of the disability, and what is required in the job, are all relevant.

Each case is different. Diabetes NZ recommends that people seek legal and medical advice specific to their individual circumstances.

Your employer must take reasonable steps to help you work

Under New Zealand law, employers are expected to make “reasonable accommodations” in the workplace for people with disabilities, including diabetes. If they don’t, you may be able to make a complaint to the Human Rights Commission alleging discrimination.

Diabetes Manawatu, Unions Manawatu, and Palmerston North City Council have put together a useful pamphlet for people with diabetes called Diabetes – What are your Rights and Responsibilities at Work?

It says people with diabetes are entitled to A safe diet.

• Regularly scheduled break times.

• Rest periods to avoid workplace accidents if you are feeling dizzy or have other symptoms of low or high blood glucose.

Depending on the type of work you do, you may also be entitled to:

• Access to a clean area for blood glucose testing or insulin injection.

• Specially tailored work boots to offset neuropathy.

• Specially tailored gloves for the same reason.

• Subsidised regular eye examinations to avoid the risk of retinopathy.

However, different employers may offer different entitlements depending on their interpretation of “reasonable accommodations”.

What is reasonable requires an assessment of what is practical and proportionate in the circumstances, balancing the interests and needs of both employee and employer. For example, Diabetes NZ would expect employers to be understanding of employees needing to take a brief break to have a snack or finding a private space to inject themselves with insulin in the workplace.

However, if employees cannot do the job safely, or take an excessive or unreasonable amount of time off work, then an employer is allowed to address that. Employers must consult with employees before making a decision that may affect their employment – and give them time to seek legal advice and to respond to proposed outcomes, before decisions are reached. 

You may need to disclose the fact you have diabetes to an employer

If a person has a hidden disability that will not prevent the job applicant from carrying out the work satisfactorily or safely, they don’t need to tell their prospective employer, according to the Human Rights Commission in its Getting a Job guide.

If you are diagnosed with diabetes while working for your current employer you may have to tell them you have diabetes. It depends on your personal circumstances – whether your condition impacts, or potentially impacts, on your work, including the safety of others. For some employees and some types of employment, you will have to tell your employer, for example long-distance lorry drivers. It’s a complex area of employment law and if unsure, Diabetes NZ recommends seeking legal advice for your particular circumstances.

But remember you can only receive protection under anti-discrimination laws if your employer knows about your condition.

And if you’d like workplace accommodations, you will need to disclose your diabetes.

Taking responsibility

It’s important to properly manage your diabetes in the workplace. If things aren’t going so well, ask your diabetes team for advice on whether you need to change your diet, exercise, or medication at work. This may be especially important if you work shifts or long hours, or operate machinery.

Be conscientious and timely in taking your diabetes medication. It will keep you healthy and also prevent accidents in the workplace. Tell your employer about any medication you take and the possible side effects if you are unable to take it at the proper time.

If you are feeling unwell and are operating machinery, you may need to stop what you are doing and rest. Explain to your supervisor why this is happening.

For more information about your rights at work:

•Diabetes NZ on 0800 342 238 or go to www.diabetes.org.nz.

•The Health & Disability Commissioner www.hdc.org.nz

•The Human Rights Commission www.hrc.co.nz

•Community Law NZ http://communitylaw.org.nz/free-legal-help/

•Your union if you have one, or ask your CAB to recommend a local specialist employment lawyer.

With thanks to McBride Davenport James for their assistance with this article

**This article first appeared in the Autumn 2019 issue of Diabetes Wellness magazine. Join today to receive your free copy of our flagship magazine

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Jo Chapman