Diabetic Worker Fired for “Grazing” on a Bag of Chips

Apr 22 2014 - Disabilities, Discrimination, Termination, Workplace Policies - Gail Cecchettini Whaley

A long-term employee of Walgreens was fired because the company claimed she violated its “anti-grazing” policy when she grabbed a bag of potato chips from the store and ate some of them to stabilize her low-blood sugar.

According to the allegations, Josephina Hernandez worked for Walgreens for 18 years. Walgreens knew Hernandez was diabetic, and she was allowed to possess candy, keep insulin in the break room and take additional breaks if needed. In 13 years, she took only one additional break for her diabetes and never asked to be allowed to eat merchandise without paying.

In 2008, Hernandez was in the midst of returning items to the shelves when she suffered from a hypoglycemic attack. She grabbed a $1.39 bag of potato chips from the store shopping cart she was using to return the items, and started to eat some chips. She was shaking and sweating from low blood sugar and did not have any candy with her. About 10 minutes later, she went to pay for the chips at the designated register but no one was there. She put the half-eaten bag under the counter at her register and returned to re-stocking shelves.

The assistant store manager found the chips and reported her to the store manager. Hernandez provided a statement regarding the incident and wrote “my sugar low, not have time.” She was terminated for violating Walgreens’ strict policy against employee theft in the form of “grazing” – eating food merchandise without paying for it.

The Equal Employment Opportunity Commission (EEOC) brought a lawsuit on her behalf, alleging that Walgreens’ actions violated the Americans with Disabilities Act (ADA).

Last week, a federal district court held that a jury should decide whether or not Walgreens should have accommodated Hernandez’s actions. According to the court, just because Hernandez took the chips in violation of a legitimate Walgreens policy did not automatically allow for her termination.

This case poses an interesting dilemma: how to handle a violation of a legitimate workplace conduct rule when the misconduct is caused by a disability. According to the court, the key question will turn on business necessity. In cases of egregious violations, such as workplace violence, applying a conduct rule to terminate an employee will clearly be justified by business necessity and the disability will not excuse the conduct.

But in this case, was it a “business necessity” for Walgreens to fire Hernandez for eating a $1.39 bag of chips when she claimed they were necessitated by her medical condition? This question will now be up to a jury to decide. Employers are generally told to always apply workplaces conduct policies consistently. But, in this instance, the court indicated that the work rule should make sense in the context of the employee suffering from the particular disability.

This case highlights the need for a case-by-case analysis when dealing with a reasonable accommodation issue.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia’s HR Library offers information on examples of accommodations and the interactive process in the Reasonable Accommodation of Disabilities section. Not a CalChamber member? Learn more about what HRCalifornia can do for you.

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