Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

On September 27, 2011, the EEOC filed suit against BAE Systems alleging that the company violated the ADA by firing a morbidly obese employee at one of its manufacturing plants.  The employee, who weighed more than 600 pounds, sorted parts on a raised platform, drove a forklift, and performed deskwork.  In its complaint, the EEOC alleged that BAE terminated the long-term employee, after telling him that it “had reached the conclusion that he could no longer perform his job duties because of his weight.”  During the EEOC’s investigation, the company stated that the employee had difficulty bending, stooping, and kneeling.  It also contended that the employee had difficulty walking from the parking lot to the plant, from which it concluded that he had trouble walking around the facility.  BAE denied the employee's request to be moved to another position.  It also allegedly made no attempt to discuss reasonable accommodations.

At present, there are no federal laws designating weight as a “protected characteristic,” like race, sex, and religion under Title VII of the Civil Rights Act of 1991, or prohibiting against discrimination in employment on the basis of obesity.  Further, with the exception of Michigan and a few local jurisdictions (e.g., San Francisco), state and local laws likewise do not afford protection against obesity discrimination.  The EEOC’s suit against BAE, however, highlights an avenue that obese individuals may pursue for protection - the ADA.  Under the ADA, as revised by the ADA Amendments Act of 2008, an individual is considered disabled if he or she has a disability, has a record of a disability, or is regarded as disabled, and that disability “substantially limits one or more of [the individual’s] major life activities.”

Proactive employers can adapt their practices and policies to address this developing issue.  In addition to combating stereotypes about obese workers, employers should recognize obesity as a very real, potential disability that may require reasonable accommodation through the “interactive process” called for by the ADA.  Employers may also consider other measures that address the root of obesity, such as implementing voluntary, private weight reduction programs or developing a healthier workplace culture, for example, by stocking vending machines with water and low-fat snacks, offering fitness fairs and health screenings, and partnering with local athletic clubs to offer employee discounts.

Employers should not despair.  Under most state laws, employers are free to discipline or terminate employees for positive drug test results, regardless of whether they are state sanctioned medical users of the drug.  Further, the Occupational Safety and Health Act (OSHA) imposes on employers a general duty to provide a safe workplace, which arguably supports excluding individuals who are deemed to be impaired by use of marijuana.  Even under the ADA, employers need not provide an accommodation that creates a direct threat or an unreasonable risk of harm.  In addition, under the federal Drug Free Workplace Act of 1998, federal contractors and recipients of federal grants must prohibit the use of marijuana as a condition of participation.

Perhaps most importantly, courts thus far have upheld the right of employers under federal law to terminate employees for engaging in activities that are prohibited by federal law, even if such activities are permissible under state law. Following are several examples of decisions that have addressed medicinal marijuana use:

• In 2008, the California Supreme Court upheld an employer's right to fire an employee who failed a pre-employment drug screening, even though he was taking marijuana prescribed by his physician to treat chronic pain. Ross v. Ragingwire Telecomm., Inc., 42 Cal 4th 920 (Cal. 2008)
• The Montana Supreme Court held this year that a state law allowing medical marijuana does not require employers to accommodate the medical use of marijuana in the workplace. Johnson v. Columbia Falls Aluminum Co., LLC, 2009 MT 108N (MT 2009)
• The Oregon Supreme Court recently held that the employer did not have to make reasonable accommodations for an employee who used medical marijuana to treat leg spasms because the employee did not meet the statute’s definition of a disabled person, as his impairment did not substantially limit a major life activity.  Washburn v. Columbia Forest Productions, Inc, 340 Ore. 469 (Ore. 2005)

Thus, while employers must consider the ADA and state laws in deciding whether to terminate an individual for a positive drug test, there are plenty of sound arguments supporting continued enforcement of drug-free workplace policies.  To the extent an employee claims to be using the drug for medicinal reasons, the employer should consult legal counsel to determine whether any legal obligation or restriction prevents normal enforcement of the policy.