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If You Are Disabled, Can You Be Fired for Stealing a Bag of Chips?

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.

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