We have an employee who is seriously overweight. This employee was overweight when he was hired, so I can honestly say our Company does not discriminate against such things. However, since his employment here, he has added quite a bit more weight. He is well liked by his fellow employees and supervisors.  We are just extremely concerned about his health.  He is a delivery Driver and now cannot fit in most of our vehicles. We have had numerous customers call and ask that he not deliver to thier facilities, as they are concerned something may happen, as he is consistently out-of-breath by the time he finishes the delivery. We donot want to term this employee as he may feel he is being discriminated against. Any suggestions?

Hey, have you looked at his job description.  Obviously, the essentail function of a delivery driver is to drive your delivery trucks, and it looks like he soon will not be able to do this.  Is another essential function lifting 25 pounds (or more)?  The reports that he is out of breath making deliveries seems like he is on the verge of not being able to perform this function either.

Since the job description describes the job and not the person in the job, if you call him in to discuss the fact that he is close to not being able to fulfil the essential functions of his job because of his weight and you have documentation, then there is really no discrimination involved.  But first, better check your state laws on weight discrimination or run this situation by your company counsel.

Do you have a more sedentary job that you can offer him as a transfer?

It sounds like he may be perceived to have a disability.  That means it's time to open the door to a dialogue about possible accomodation, even if the main purpose of entering into that dialogue is to make sure he understands the limits on what a 'reasonable' accomodation is.  That is, you may want to enter into a dialogue in order to tell him that he's in danger of losing his job if he cannot perform it properly.  These discussions begin with the magical phrase, "Is there anything about you or about your life right now that may be interfering with your ability to do your job that you want me to know about?"  After that, it's up to him to say something before you go any further down that path.  If he opens with, "What's this all about?"  Then you say that his physical condition is becoming a problem in terms of the trucks he can use and there are questions about his ability to deal with the exertion required to do the job safely.  If he wants to deny that anything is going on, then there are limitations on what you can do for him.

 

I'm pretty sure that your customers' concerns may not be actionable from a HR standpoint, depending on local law.  That is, if your customers said that they didn't want a person to deliver to them because that person was, say, a black person, I'm sure you would not be entertaining the possibility of transferring the driver.  A lot depends on the status of obesity in your state(s) of operation.  Obesity is something that, like homosexuality, is increasingly addressed at the city and county level so tread carefully until you have detailed knowledge.

This is a tough one.  What kind of accommodation is there in this situation?  Anything I can think of (a helper, larger truck) would be a hardship to the employer.

bevhunt:

This is a tough one.  What kind of accommodation is there in this situation?  Anything I can think of (a helper, larger truck) would be a hardship to the employer.

 

There are two parts to this.  The first part is that whether you think there is a possible accomodation or not, once you perceive that someone is a qualified individual with a disability, it's time to enter into a dialogue.

The second part is that you sometimes go into an ADA dialogue opener with the intention of making sure the potentially affected party knows there is no accomodation.  Often, that's how it ends, too, and the employee has to figure something out.  Other times, they tell you something that invokes FMLA or worker's comp or they give you a very creative idea for an accomodation that works for the Company.

With the possibility of this being an ADA issue, I think now is the time to contact your corporate attorney.  I have read about cases going either way on the weight issue.  I would follow the guidance of the attorney as to how to handle this one. 

And at least one state, Michigan, prohibits discrimination based upon weight.

 I would seek legal counsel before discussing it with the employee.

 

I am dealing with a similar problem.  A Fork Lift Operator is so heavy he ruins seats in just a few months, we can't find a seat belt to accomodate him and now the engine cowls are caving in under his weight.  We are looking for accomodations such as OSHA approved seat belt extenders and heavy duty, or larger, seats but neither of those fixes will solve the problem of the sinking engine cowl.  Much longer and he will be crushing the motor.

 He has always been obese but has gained more weight in the past year.  I think the problem is partly caused by the manufacturers using more plastic or lighter guage materials in the construction of the lifts.  We are committed to accomodation but have decided that if we can't make the situation safe and prevent unreasonable expenses in equipment repair, we will have to move him to another job or even terminate him.  If we go with the latter it will only be after every attempt has been made at accomodation and maybe even offering him a weight loss program.

 I would welcome input and suggestions also.

you are in a tough spot.  i think courts are in the process of figuring this issue out as more americans become obese. i believe that generally under federal law obesity isn't covered by ada unless it is morbid obesity. as someone noted above there's still the issue of being  "perceived" as having a disability. anyhow even if ada comes into play the employee must be able to perform the essential functions of the job with or without an accommodation, and the accommodation must be reasonable without undue hardship on  the employer.

this doesn't have address your immediate concern but does your company have a wellness program?

regdunlop:

you are in a tough spot.  i think courts are in the process of figuring this issue out as more americans become obese. i believe that generally under federal law obesity isn't covered by ada unless it is morbid obesity.

 

The definition of Obesity changes regularly but here's one blurb on it from a JAMA article:

 JAMA. 2002;288:2793-2796.

Obesity, defined as 20% or more than the ideal weight or body mass index (BMI, calculated as weight in kilograms divided by the square of height in meters) of 30 or more, has reached epidemic levels in the United States, affecting more than 30% of adults.¹ Annual direct costs for treating obesity-related medical illnesses have been estimated at nearly $51.6 billion; the annual US expenditure on weight reduction exceeds $30 billion.^2-3 It was recently estimated that the prevalence of obesity in US adults increased by 8% during the past decade. In the 21st century, obesity may be the number 1 US public health problem (http://www.surgeongeneral.gov/topics/obesity/).

Morbid or severe obesity was traditionally defined as a weight of 45 kg or more or 100% over ideal body weight defined by standard life insurance tables. More recent classification systems define morbid obesity as a BMI of 40...[and that's all you get for free from JAMA!]

Of course, this also goes back to perception.  Nobody is going to ask you if you think a person's BMI is 20% over ideal, they're going to ask you if you think someone is obese.  If enough people think so that can affect this person's work, then you have an ADA perception issue to deal with.

 

Hi,

I'm back again! Thank you all for your previous comments. FYI- this employee is still with us. We have come across another problem though!  Our Commercial driver's are now required to carry Medical Examiner Certificates, showing that they are physically able to drive the larger trucks.  In order to get the certificate, the driver must have an examination. Before the examination the employer must go through the check list and either check "yes" or 'no" for each health issue listed.  The above employee checked "yes" to Sleep Disorders.  The Examiner stated they could not at this time give him his certification certificate until he has a sleep apnea test done.  He did however issue him a temporary thirty day certificate until the testing is done and the results are back.  These certificates are good for two years, if driver is healthy.  If there is an issue with a health problem, and the driver is taking medication for the problem, they will issue only a one year certificate.  I'm not really sure what will happen if  he does not pass the apnea test.

Along with this issue, as I have stated above, the employee is having a hard time fitting in our vehicles. The owner was visiting the branch last week and was speaking with the employee. Just talking, nothing about the above problem.  We are in the process of buying a new, bigger truck, as business has really picked up. While talking to the owner, the employee asked "What are we going to do when the new truck comes? I will not fit into it?"

After going through all this, the real question is, if we terminate this employee, is there any way he can come back and say we are discrimating against him for being overweight?

In speaking with the Operations manager at the branch, I had asked him if there would be a problem with this employee just driving certain trucks, in which he is comfortable in?  The problem he had with that was, what if a call came in for a delivery and that truck was not available.  We cannot make a customer wait for a delivery until the right truck comes back.  You should also know, this is a medical rental equipment company. There are times when a  peice of equipment has to be delivered right away.

I had also asked if there was any other position this employee could take, the answer was "no", we need a driver!  We just need to know if we can legally term this employee if he can no longer perform the duties he was hired for? Taking into consideration that if he does not pass the sleep apnea test, he may not get certified, which would mean if he were pulled over for any reason, the company would be fined.

Sorry to be so lengthy! I just want to be sure we are doing the right thing. We all feel bad about the circumstances, as I said in the earlier posting, this guy is well liked.

 

No cert, no driving job.  That part is easy.  No other job to move him to, well, that part is hard and worth a phone call to the attorney but the end answer probably is termination because he can't do his job under the law.

 

Cert but no truck, that part is difficult and immediately invokes an attorney meeting.  You'll need to understand how far down road of good-faith attempt to accomodate you will have to travel.  At the very least, you will need to be able to say clearly why you can't change the way you schedule truck availability to ensure there is always one available that he can use and you will need to be able to talk about the cost of converting a truck to make it usable by him.  It's hard to expect a jury to take you seriously if you can't put a dollar figure down on what it would have cost you to convert a few trucks or change your scheduling or vehicle assignment to ensure that one he fit in was always available.  "Oh, cost?  We're not sure about cost, we just know that it was really too much trouble.  Isn't that what 'undue hardship' means?"

If you fire him after he passes the cert process or has an active temp cert and you can't show that the reason why is because he can't do his job with reasonable accomodation, you are in for a tough time.  Or, to answer your question in short, "Yes, he can sue you for ADA retaliation or disability discrimination (if he's morbidly obese or if he can show that you perceive him to be so) or for discrimination under Michigan state law if you fire him without having your ADA ducks in a row (and having those ducks swimming in the correct direction for termination)."