Can you be fired for stealing a bag of potato chips from your employer?
Well, yes, if your employer is a retailer and has a "no-grazing"
policy. But what if you needed to eat immediately because you have hypoglycemia
and diabetes? Would you be protected under the ADA (Americans with Disabilities Act)?
Josefina Hernandez was diabetic and occasionally had attacks of hypoglycemia.
When she was having an attack, she'd have to eat something to get
her blood sugar back up to normal. She usually kept her own stash of candy
for just such situations. She'd worked for Walgreens for 18 years
with no problems. Walgreens was aware of her diabetic condition, and knew
about her candy "stash" and let her keep insulin in the store
refrigerator. In the 13 years that Hernandez worked for Walgreens after
being diagnosed with diabetes, Walgreens allowed Hernandez to possess
candy in case of low blood sugar, keep her insulin in the break room refrigerator,
and take additional breaks to test her blood sugar or eat because of her
diabetes. In that 13 year time period, there was only one time when Hernandez
asked to take an additional break to eat food because of low blood sugar.
In that same time period, Hernandez never asked Walgreens to be permitted
to paying for it first.
One day while at work Hernandez was returning items in a shopping cart
to shelves. She noticed she was shaking and sweating from low blood sugar.
She did not have any candy with her and was in the magazine isle, so she
opened a $1.39 bag of potato chips that was in the cart and ate some of
them. She did not notify or request assistance from a manager before she
opened and ate the chips. After returning from vacation, Hernandez was
fired for violating the "no grazing" policy. Hernandez filed
an EEOC complaint.
Walgreen's tried to have the case thrown out under the theory that
anyone, including a disabled employee, can be fired for violating workplace
rules. The court ruled for Hernandez, stating that whether misconduct
resulted from a disability protected under the ADA is a question for a
jury to decide, and that therefore the case should continue.
The takeaway: If you are fired because you have violated a workplace rule,
but did so as a result of a disability of which your employer was aware,
you may have a case under the ADA. Be sure to call the attorneys at Schwartz
and Perry LLP if you have subject to any form of discrimination.