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From page 52... ... Physical exams have also been held to be searches under state constitutions. A lower New Jersey Court has held that although medical exams are a managerial prerogative, they still must meet the requirements under the New Jersey Constitution that individuals be free from unreasonable government searches.481 That court found the testing to be justified under the administrative search exception. Read the entire page →
From page 53... ... This section discusses smoking and obesity, two habits/conditions that can both affect job performance and be tested for with relative ease.490 Tests for the presence of nicotine in the bloodstream or to measure BMI491 are almost certain to be considered medical examinations and thus must comply with the requirements under the ADA, supra, for medical exams. Nonmedical personnel could check an employee's weight, but if done as part of a lifestyle program, such weight checking would almost certainly be medically driven and so subject to the same constraints as nicotine testing and BMI measurement. Read the entire page →
From page 54... ... . 495 Edelman, Finding Wealth Through Wellness: How Engaging Employees in Preventive Care Can Reduce Healthcare Costs, An Executive Guide to Corporate Wellness Programs, Fall 2006, www.edelman.com/image/insights/content/ Wellness_White_Paper.pdf, at 11. Read the entire page →
From page 55... ... Seventeen states specifically prohibit making employment decisions based on off-duty use of tobacco, seven states based on off-duty legal activity or consumption of legal products, and another three for reasons that would cover the use of tobacco.507 North Dakota's statute was intended to protect a range of nonwork conduct, including "an employee's weight and smoking, marital, or sexual habits."508 Even laws protecting off-duty tobacco use may have exceptions for jobrelated smoking bans.509 Moreover, the state laws may protect incumbent employees but not job applicants.510 For over 2 decades, Massachusetts has banned smoking off or on the job for police and firefighters.511 The personnel administration rules implementing this legislation require the termination of an employee violating the requirement.512 The Massachusetts Supreme Judicial Court upheld both the statute and implementing regulation, holding there was no discretion as to whether to terminate an offending employee. The court found that the legislature had made the judgment that police and firefighters were already at high risk of developing hypertension and heart disease due to the nature of their jobs, and that to decrease the risk of such employees needing to retire with disability benefits, had banned an activity that would increase that risk.513 Florida state law also prohibits firefighters from using tobacco,514 a provision that was supported by at least one 507 See ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra note 109; Berman & Crane, supra note 502, at 1651. Read the entire page →
From page 56... ... Takeaway: In drug testing cases, courts often note the fact that drug tests that are part of a lawful medical examination, so that the test for a controlled substance is merely an additional test run on blood or urine collected in any event, are less intrusive and so less objectionable from a constitutional standpoint than standalone drug tests. Similarly, nicotine tests that are part of lawful medical exams, such as preemployment physicals, should be deemed less intrusive than stand-alone tests, and thus less vulnerable to legal challenge. Read the entire page →
From page 57... ... As of October 2009, there do not appear to be any existing programs that routinely screen bus or rail operators for obstructive sleep apnea.531 State. -- Michigan's Elliott-Larsen Civil Rights Act specifically includes height and weight in the list of prohibited bases for discrimination in employment.532 Although it appears that Michigan is the only state to prohibit discrimination based on weight, San Francisco and Santa Cruz, California, also prohibit discrimination based on weight.533 The District of Columbia Human Rights Law prohibits discrimination based on personal appearance, which requirement could affect weight standards.534 Absent such prohibitions, simple weight restrictions should be permissible.535 In 2007, a candidate sued LA Metro alleging that LA Metro had failed to hire her based on her perceived disability of obesity.536 Having lost at the trial court level, the plaintiff appealed the disability ruling and raised an equal protection argument. The plaintiff had applied for a position as a bus operator. Read the entire page →

From page 52...

... Physical exams have also been held to be searches under state constitutions. A lower New Jersey Court has held that although medical exams are a managerial prerogative, they still must meet the requirements under the New Jersey Constitution that individuals be free from unreasonable government searches.481 That court found the testing to be justified under the administrative search exception.

Read the entire page →

From page 53...

... This section discusses smoking and obesity, two habits/conditions that can both affect job performance and be tested for with relative ease.490 Tests for the presence of nicotine in the bloodstream or to measure BMI491 are almost certain to be considered medical examinations and thus must comply with the requirements under the ADA, supra, for medical exams. Nonmedical personnel could check an employee's weight, but if done as part of a lifestyle program, such weight checking would almost certainly be medically driven and so subject to the same constraints as nicotine testing and BMI measurement.

Read the entire page →

From page 54...

... . 495 Edelman, Finding Wealth Through Wellness: How Engaging Employees in Preventive Care Can Reduce Healthcare Costs, An Executive Guide to Corporate Wellness Programs, Fall 2006, www.edelman.com/image/insights/content/ Wellness_White_Paper.pdf, at 11.

Read the entire page →

From page 55...

... Seventeen states specifically prohibit making employment decisions based on off-duty use of tobacco, seven states based on off-duty legal activity or consumption of legal products, and another three for reasons that would cover the use of tobacco.507 North Dakota's statute was intended to protect a range of nonwork conduct, including "an employee's weight and smoking, marital, or sexual habits."508 Even laws protecting off-duty tobacco use may have exceptions for jobrelated smoking bans.509 Moreover, the state laws may protect incumbent employees but not job applicants.510 For over 2 decades, Massachusetts has banned smoking off or on the job for police and firefighters.511 The personnel administration rules implementing this legislation require the termination of an employee violating the requirement.512 The Massachusetts Supreme Judicial Court upheld both the statute and implementing regulation, holding there was no discretion as to whether to terminate an offending employee. The court found that the legislature had made the judgment that police and firefighters were already at high risk of developing hypertension and heart disease due to the nature of their jobs, and that to decrease the risk of such employees needing to retire with disability benefits, had banned an activity that would increase that risk.513 Florida state law also prohibits firefighters from using tobacco,514 a provision that was supported by at least one 507 See ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra note 109; Berman & Crane, supra note 502, at 1651.

Read the entire page →

From page 56...

... Takeaway: In drug testing cases, courts often note the fact that drug tests that are part of a lawful medical examination, so that the test for a controlled substance is merely an additional test run on blood or urine collected in any event, are less intrusive and so less objectionable from a constitutional standpoint than standalone drug tests. Similarly, nicotine tests that are part of lawful medical exams, such as preemployment physicals, should be deemed less intrusive than stand-alone tests, and thus less vulnerable to legal challenge.

Read the entire page →

From page 57...

... As of October 2009, there do not appear to be any existing programs that routinely screen bus or rail operators for obstructive sleep apnea.531 State. -- Michigan's Elliott-Larsen Civil Rights Act specifically includes height and weight in the list of prohibited bases for discrimination in employment.532 Although it appears that Michigan is the only state to prohibit discrimination based on weight, San Francisco and Santa Cruz, California, also prohibit discrimination based on weight.533 The District of Columbia Human Rights Law prohibits discrimination based on personal appearance, which requirement could affect weight standards.534 Absent such prohibitions, simple weight restrictions should be permissible.535 In 2007, a candidate sued LA Metro alleging that LA Metro had failed to hire her based on her perceived disability of obesity.536 Having lost at the trial court level, the plaintiff appealed the disability ruling and raised an equal protection argument. The plaintiff had applied for a position as a bus operator.

Read the entire page →

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