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Ask The Lawyer, By: Daniel A. Gwinn, Esq.

| November 3, 2018

WEIGHTY QUESTION: WHAT TO DO WHEN WORKER BECOMES “TOO FAT” TO PERFORM JOB?

QUESTION: I run a cleaning service in the Detroit metro area. One of my workers, “Mary”, began to put on weight a couple of years ago; my guess is she has gained at least 100 lbs. She is now morbidly obese. I’m concerned that her weight is affecting her ability to do the work, or do it as quickly as needed. Can I ask her to lose weight or lose her job?

ANSWER: Not unless you want a lawsuit! Weight is a protected category under the Elliott-Larsen Civil Rights Act. Employers are not allowed to take adverse actions (firing, demotion, cutting hours, etc.) against workers solely because of their weight.

You may also be looking at a potential Americans with Disabilities Act (ADA) issue: Mary’s weight gain may be related to an underlying disability (putting on 100 pounds in a couple of years is unusual). Some courts have also recognized morbid obesity (100 pounds over ideal bodyweight with a high Body Mass Index) as a disability in itself.

So, what do you do?

Focus on Mary’s performance. Why do you think her weight is affecting her ability to do her job? Has another worker complained? Have you noticed that Mary is not doing as much work as she has in the past? Is she failing to meet any quota? Have you received complaints about her work from customers? If you have an objective reason to be concerned about her ability to work, you need to discuss it with her. Without asking WHY she is experiencing difficulties, describe, in detail, the deficiencies that have been noticed, you may want to ask her if there is any reasonable accommodation you can give her that would enable her to fulfill all the “essential functions” of her job.

Examples of reasonable accommodations are allowing a hard-of-hearing worker to use a special phone; reassigning a worker with a bad back to a desk job; allowing a worker who has trouble walking to park near the entrance. Asking another worker to cover for a worker with a disability, putting other workers or the general public at risk (allowing a blind worker to operate a fork-lift); or eliminating an essential function of the worker’s job are not reasonable accommodations.

If Mary suggests a reasonable accommodation that would enable her to perform the essential functions of her job duties, you should give it a go. But, if she wants to be exempted from mandatory job duties (no scrubbing floors, for instance), or the accommodation still won’t enable her to perform all her essential job functions, the request is not reasonable and you are not required to grant it.

If there is no reasonable accommodation that would enable Mary to meet all the demands of her job, then you can let her go. When you do so, however, make sure that you list her inability to meet all the requirements of her job, with or without an accommodation – and not her weight – as the reason for her discharge.

Now, if the only reason you are concerned that Mary ‘s weight is affecting her job is because you don’t believe a very heavy person is able to do the job, you are discriminating against Mary, viewing her as less capable only because of her weight.

Bottom line: As long as Mary can fulfill all her essential job duties, what she weighs is irrelevant and you need to MYOB.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Daniel A. Gwinn
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI  48084
(248) 247-3300
(248) 247-3310 facsimile

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