Application of Physical Ability Testing to Current Workforce of Transit Employees (2010)

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52 exam has also been upheld against Fourth Amendment challenges, either for job applicants474 or for employees, where a sufficient nexus exists between the test and the employer’s legitimate safety concerns.475 For example, a New Jersey court has held that the Fourth Amendment “does not require individualized reasonable suspicion for drug testing of transportation workers as part of a bona fide annual physical examination.”476 A number of federal district courts have also upheld drug screening as part of routine physicals or return-to-work physicals, based on balancing the transit agencies’ compelling safety interests, diminished expectation of privacy of safety-sensitive employees, and limited intrusiveness of the procedure.477 The government interest in testing job applicants has been held to be higher than that for test- ing incumbent employees, while the expectation of pri- vacy for job applicants, particularly as regards preem- ployment physical exams, has been held to be lower than that for incumbent employees.478 2. State Constitutions Government-compelled drug and other testing has been held to be a search under the search and seizure requirements of various state constitutions.479 However, state constitutions may offer greater protection against unreasonable search and seizures than the Fourth Amendment,480 but not always. In Burka, supra, the court also held that the New York state constitution did not provide greater constitutional protection than the Fourth Amendment for purposes of assessing the drug testing in question, so that drug testing safety-sensitive employees is subject to the same special needs constitu- tional analysis under the state constitution as under the Fourth Amendment. The court also ruled on a due process challenge to the drug testing policy, that NYCT had taken adverse action without the requisite proce- dural due process. The court found that only permanent employees had enough of a property interest in job se- curity to have any sort of due process interest. The 474 Loder v. City of Glendale, 14 Cal. 4th 846, 927 P.2d 1200, 59 Cal. Rptr. 2d 696 (Cal. 1997). 475 Amalgamated Tr. Union v. Cambria County Transit Auth., 691 F. Supp. 898, 902 (W.D. Pa. 1988); N.J. Transit PBA Local 304 v. N.J. Transit Corp., 895 A.2d 472, 384 N.J. Super. 512 (N.J. Super. 2006) (mandatory annual physical exam for transit police, including request for medical history and blood and urine testing, does not violate Fourth Amendment or Arti- cle 1, paragraph 7 of the New Jersey Constitution). 476 Fed’n of Prof’l & Technical Eng’rs, Local 194A v. Burling- ton County Bridge Comm'n, 240 N.J. Super. 9, 11, 572 A.2d 204 (App. Div.). 477 Moxley v. Reg’l Transit Servs., 722 F. Supp. 977 (W.D.N.Y. 1989); Holloman v. Greater Cleveland Reg’l Trans. Auth., 741 F. Supp. 677 (N.D. Ohio 1990). 478 Loder, 927 P.2d 1200. 479 See e.g., N.J. Transit PBA Local 304 v. N.J. Transit Corp., 151 N.J. 531, 543, 701 A.2d 1243, 1249 (1997). 480 E.g., id. at 555–56, 1255. See WAITE, supra note 460, at 37–45 (discussing state constitutional issues related to search and seizure). court found various defects in NYCT’s drug testing pro- cedure, including lack of timely notice to employees of positive results and lack of notice of the option for inde- pendent testing, sufficient to constitute lack of proce- dural due process under the Fourteenth Amendment and Article I, Section 6, of the New York State Consti- tution, noting that the standard of due process scrutiny under the New York Constitution was no higher than under the Federal Constitution. 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 un- der the New Jersey Constitution that individuals be free from unreasonable government searches.481 That court found the testing to be justified under the admin- istrative search exception. The California Supreme Court has held that drug testing as part of a preem- ployment medical examination is permissible under the California constitution.482 IV. OTHER ISSUES A. Tort/Workers Compensation Liability for Injuries Suffered During Physical Ability Test One of the risks of conducting physical ability testing is that an applicant or employee may be injured during the test. While the risk of injury is likely to be less than during the more strenuous tests conducted for police and firefighters, the risk for transit operator and other non-law-enforcement-position tests nonetheless exists. A threshold question is whether a transit agency is subject to tort liability at all, which will depend on state law.483 Assuming that the agency is subject to tort liabil- ity, the enforceability of a release from liability for inju- ries suffered during a physical ability test will also de- pend on state law. State statutes may prohibit contracts that purport to exempt a party from his or her own neg- ligence. The Connecticut Supreme Court, without refer- ence to state statutes, has held that exculpatory agree- ments in the employment context violate Connecticut public policy.484 It is unclear whether this ruling would apply to job applicants as well. An Illinois court held that an exculpatory agreement signed by a fire depart- ment trainee before taking the department’s physical agility test was unenforceable due to lack of considera- tion.485 The court held that the fire department was re- quired by law to administer the test, and the trainee had a legal right to participate: given that the act of 481 N.J. Transit PBA Local 304 v. N.J. Transit Corp., 476, 384 N.J. Super. 512, 895, A.2d 472 (App. Div. 2005). 482 Loder, 927 P.2d 1200. 483 See JOCELYN WAITE, TRANSIT BUS STOPS: OWNERSHIP, LIABILITY, AND ACCESS 4–6 (Transit Cooperative Research Program, Legal Research Digest 24, 2008). 484 Brown v. Soh, 280 Conn. 494, 909 A.2d 43 (2006). 485 White v. Village of Homewood, 256 Ill. App. 3d 354, 628 N.E.2d 616 (1st Dist. 1993).

53 signing arose from a preexisting legal duty, there was no consideration. The court rejected the argument that another Illinois case, in which an exculpatory agree- ment related to police training was enforced, was con- trolling, finding that the existence of consideration was not raised as an issue in that case. The court also found that the disparity in bargaining power between the par- ties made the agreement void as against public policy, noting the economic compulsion for those seeking em- ployment. Finally, the court noted the similarity in the relationship between potential employer and applicant and the relationship between employer and employee, and the fact that exculpatory agreements in the latter context relieving the employer from liability for the em- ployer’s own negligence have long been considered to be against public policy. On the other hand, a New Jersey court has held that an exculpatory agreement signed by a police trainee was valid and enforceable.486 In its opinion the court noted that disparate bargaining power alone will not invalidate an exculpatory agreement, as such a re- quirement would swallow the rule. The court found that an exculpatory agreement was in fact in the public in- terest because the dangerous nature of the police train- ing course made injures likely and because striking down the exculpatory agreement would have a negative effect on the training program, encouraging those who run the program to act out of fear of lawsuits rather than in effective preparation of police officers. The court also found there was no “positive duty” to protect train- ees from harm as expressed in a specific affirmative law or regulation. In addition, the court found that the fact that the trainee had to sign the agreement to partici- pate in the training was not a sufficient basis for find- ing the agreement unconscionable: the employment context did not supply the requisite degree of economic compulsion for unconscionability. Courts are split over the question of whether an ap- plicant injured during a physical ability test is covered by workers’ compensation. One line of opinions holds that the applicant is not an employee and therefore is not covered.487 Other courts have held that the physical ability testing is required for the employer’s benefit, so that a constructive employer/employee relationship ex- ists.488 The West Virginia Supreme Court of Appeals has held that where an offer of employment is conditioned 486 Marcinczyk v. State of N.J. Police Training Comm’n, 406 N.J. Super. 608, 968 A.2d 1205 (App. Div. 2009). 487 E.g., Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); Boyd v. City of Montgomery, 515 So. 2d 6, 7 (Ala. Civ. App. 1987). Cf. Standring v. Town of Skowhegan, 2005 ME 51, 870 A.2d 128 (2005) (finding heart attack suffered by re- serve police officer during physical agility test for promotion to full-time police officer may have arisen out of and in course of employment, so as to be eligible for workers’ compensation benefits). The Standring court cited the factors in Comeau v. Maine Coastal Servs., 449 A.2d 362, 365–67 (Me. 1982), id. at 10. 488 Laeng v. Workmen's Compensation Appeals Bd., 6 Cal. 3d 777, 494 P.2d 1, 100 Cal. Rptr. 377 (1972). on the applicant completing a physical agility test ad- ministered under the direction and control of the em- ployer, participation in the test constitutes acceptance of the offer and creates a contract of employment, enti- tling the applicant to workers’ compensation coverage for injury sustained during the test.489 B. Legal Ramifications of Lifestyle Restriction In the context of this report, the term “lifestyle” re- fers to physical habits/conditions that could directly affect fitness for duty or other work-related issues (such as cost of health care) and for which an employer could test its employees via physical ability tests. 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 nico- tine testing and BMI measurement. Thus such lifestyle- related testing would be much easier to justify from a legal standpoint if conducted on job applicants rather than on incumbent employees. Moreover, if included as part of a preemployment physical exam, the nicotine testing would be much less intrusive than if required as a separate test, and so less vulnerable to challenges on grounds of invasion of privacy. 1. Smoking492 Many workplaces prohibit smoking on company premises, and in fact state laws may limit or prohibit smoking in the workplace.493 A more difficult question is whether employers can lawfully prohibit employees from smoking at all. None of the transit operators surveyed for this report indicated that they impose bans on off-duty use of to- 489 Dodson v. Workers’ Compensation Div., 210 W. Va. 636, 558 S.E.2d 635 (W. Va. 2001). 490 There are other causes of general ill health or sleepiness on the job, such as eating junk food or intentionally not getting enough sleep, but it is difficult to conceive of physical ability tests for such habits. 491 Body mass index (BMI) is a measure of body fat based on height and weight that applies to adult men and women. Cal- culate Your Body Mass Index, Department of Health and Hu- man Services, National Institutes of Health, www.nhlbisupport.com/bmi/. 492 See ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra note 109, at § 1.27, Cigarette Smoking. 493 E.g., Iowa Smokefree Air Act, www.iowasmokefreeair.gov/laws.aspx; www.iowasmokefreeair.gov/; Minnesota Clean Indoor Air Act, MINN. STAT. §§ 144.411–144.417, www.health.state.mn.us /divs/eh/indoorair/mciaa/ftb/mciaa.pdf.

54 bacco as a condition of hiring or employment. However, health concerns—including the cost of health care— have led some employers to institute such bans. For example, Weyco, a Michigan insurance benefits pro- vider, banned smoking among its employees. The com- pany provided a 15-month period for employees to quit smoking and then began random nicotine testing. Twenty employees quit smoking, and four were fired for refusing to take breathalyzer tests for nicotine.494 Weyco was apparently the first company to actually test for nicotine use of current employees.495 The Scotts Com- pany also banned employee smoking, although the re- quirement of being nicotine-free was implemented as a condition of employment for new hires, not for existing employees. A new hire who was fired for failing the nicotine screen sued unsuccessfully.496 Public employers who have banned tobacco use for all new hires include the City of North Miami; Lee County, Florida, Sheriff’s Office;497 and St. Cloud, Coral Gables, and Lighthouse Point, Florida.498 The St. Cloud ordinance required job applicants to sign an affidavit like the one required by the City of North Miami, infra. The St. Cloud policy allowed the city to require new hires to undergo medical testing to ensure that they are complying with the nonsmoking requirement.499 How- ever, St. Cloud also rescinded its policy in 2006, because the policy did not have the hoped-for effect on insurance costs and inhibited hiring.500 Potential grounds for challenging nonsmoking hiring and employment policies under federal law include vio- lations of the ADA, disparate treatment, disparate im- 494 Jeremy W. Peters, Company's Smoking Ban Means Off- Hours, Too, N.Y. TIMES, Feb. 5, 2005, www.nytimes.com/2005/02/08/business/08smoking.html (ac- cessed Oct. 23, 2009). 495 Edelman, Finding Wealth Through Wellness: How Engag- ing 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. 496 Jonathan Saltzman, Smoker Who Lost Job Loses in Court, BOSTON GLOBE, Aug. 8, 2009, www.boston.com/news/local/massachusetts/articles/2009/08/08/ smoker_who_lost_job_loses_in_court/ (accessed Oct. 24, 2009). The plaintiff alleged that the anti-smoking policy violated his right to privacy and 29 U.S.C. § 1140, Interference with pro- tected rights. The court ruled that the plaintiff did not have a privacy interest because he had smoked openly, and was not protected under § 1140 because he was not yet a bona fide em- ployee. 497 Lee Sheriff Bans New Hires Who Smoke, ST. PETERSBURG TIMES, Oct. 23, 2002, www.sptimes.com/2002/10/23/State/Lee_sheriff_bans_new_. shtml (accessed Dec. 1, 2009). 498 April Hunt & Susan Jacobson, Tobacco Users Need Not Apply, THE ORLANDO SENTINEL, Mar. 27, 2002, http://articles.orlandosentinel.com/2002-03- 27/news/0203270291_1_sue-luglio-tobacco-smokers. 499 Id. 500 Linda Florea, St. Cloud Hires Smokers Again, THE ORLANDO SENTINEL, May 24, 2006, at D7. pact, and violation of the right to privacy. Generally, neither smoking nor nicotine addiction have been held to be disabilities under the ADA.501 Other courts have rejected arguments that smokers are disabled within the meaning of the ADA.502 It also appears that there is not sufficient disparity in smoking rates between ethnic groups to mount a successful disparate-impact chal- lenge to a nonsmoking hiring policy.503 The Tenth Circuit Court of Appeals rejected a consti- tutional challenge to a smoking ban for firefighter trainees in Oklahoma City.504 The plaintiff had signed an agreement that he would not smoke a cigarette on or off duty for a period of 1 year after beginning work; he was fired for taking three puffs from a cigarette while on break. The plaintiff argued that the smoking ban interfered with his rights of liberty and privacy under the Constitution, and that the government may not unreasonably infringe on an employee’s freedom of choice in non-job-related personal matters. The defen- dants argued that there was no infringement of liberty or privacy interests and that since smoking was not a fundamental right under the Constitution, no balancing of interests was required. However, the Seventh Circuit 501 Employer on Good Footing with Smoking Ban, Experts Say, Feb. 3, 2005, http://hr.blr.com/news.aspx?id=10761; Tho- mas Benjamin Huggett, You Smoke, You’re Fired: Assessing the Legal Risks of Smoking-Restriction Hiring Policies, Morgan, Lewis & Bockius LLP, Labor and Employment Law Seminar, Oct. 27, 2005, www.morganlewis.com/pubs/LEPG05_Smoke_Fired.pdf; Joe Robinson, Light Up, Lose Your Job, LA TIMES, Feb. 19, 2006, http://articles.latimes.com/2006/feb/19/opinion/op-robinson19 (accessed Oct. 24, 2009). See Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. 2001); Ranger Fuel Corp. v. West Va. Human Rights Comm’n, 180 W.Va. 260, 376 S.E.2d 154 (1988) (use or abuse of tobacco in absence of medically verifiable addiction not physical or mental impairment). However, if a prima facie case were established, it could be argued that reducing costs by banning smoking is not permissible under the ADA: A desire to reduce costs associated with smokers that is predicated on the assumption that employees who smoke have more health-related conditions, which lead to greater insurance claims, greater absenteeism and increased injuries, is unlikely to be successful. Under ADA law, an argument can be made that this asserted legitimate nondiscriminatory business reason is, in fact, still a violation of the ADA because an employer would be using smoking as a proxy for other disabling medical conditions to which the employer apparently believes the smoker is suscep- tible, such as lung cancer or emphysema. Huggett, at 3–9. 502 Micah Berman & Rob Crane, Tobacco Law Symposium, Mandating a Tobacco-Free Workforce: A Convergence of Busi- ness and Public Health Interests, 34 WM. MITCHELL L. REV. 1651, 1661 (2008). 503 Nate Kowalski & Chris Milligan, Banning Off-Duty Smoking, CALIFORNIA LAWYER, 36, 37 (Aug. 2007), www.aalrr.com/files/Publication/7d561ca8-81d6-4e57-bbee- 03c6b6f77128/Presentation/PublicationAttachment/01533eb7- 409a-48a7-9abd-04f781822ebc/mcle.pdf (accessed Dec. 6, 2009). 504 Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987).

55 looked to the approach of Kelley v. Johnson,505 in which the Supreme Court assumed a liberty interest in per- sonal appearance, but recognized interests of state and local governments as employers that are stronger than interests those governments have vis-à-vis the general population. Thus, employment requirements need not meet the standard of other regulatory requirements: a government employee challenging a government em- ployment requirement must show that there is no ra- tional relationship between the requirement and safety of persons and property. In applying those principles to the smoking ban, the Seventh Circuit both assumed a liberty interest protecting the trainees’ right to smoke and presumed the regulation to be valid. The court noted considerations of health, particularly for fire- fighters exposed to smoke, sufficient to establish a prima facie rational basis for the regulation. The court also noted the questionable aspect of banning smoking for first-year firefighters but not for other firefighters, but declined to examine an equal protection argument not raised by the parties. The court then found that the plaintiff had not demonstrated that the requirement was irrational. Accordingly the court upheld the regula- tion. As to privacy claims, the Florida Supreme Court re- jected a constitutional challenge to a smoking ban im- posed by the City of North Miami on job applicants.506 The city had made a policy decision to reduce the num- ber of employees who smoke tobacco to reduce costs and increase productivity. To do so, the city required all job applicants to sign an affidavit attesting that they had not smoked for a year, with the goal of gradually reduc- ing the number of smoking employees through attrition. Once hired, there was no requirement regarding smok- ing. The Florida court rejected the argument that the inquiry into smoking status violated the job applicant’s reasonable expectation of privacy concerning smoking. However, the court specifically reserved the question of whether a government agency could require an incum- bent employee to stop smoking under the Florida Con- stitution. The court found that there is no federally- protected right to smoke under the penumbra of privacy of the federal constitution, citing Grusendorf, and that even if there was, there was sufficient rational basis for the regulation to support its constitutionality. The legality of absolute bans on the use of tobacco will depend on whether state law prohibits controlling employee conduct outside of the workplace and whether state law provides that employment is at will. Almost half the states allow restrictions on use of tobacco out- 505 25 U.S. 238, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976). 506 City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995). The City of North Miami has reportedly since repealed the ban because of the ban’s affect on the organization’s ability to hire otherwise qualified workers. Daniel Schorn, Whose Life Is It Anyway? Are Employers' Lifestyle Policies Discrimina- tory?, 60 Minutes (CBS television broadcast July 16, 2006), www.cbsnews.com/stories/2005/10/28/60minutes/main990617_ page3.shtml?tag=contentMain;contentBody (accessed Oct. 24, 2009). side of work. Seventeen states specifically prohibit mak- ing employment decisions based on off-duty use of to- bacco, 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 pro- tecting off-duty tobacco use may have exceptions for job- related 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 vio- lating the requirement.512 The Massachusetts Supreme Judicial Court upheld both the statute and implement- ing 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 de- veloping hypertension and heart disease due to the na- ture 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 Flor- ida state law also prohibits firefighters from using to- bacco,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. See also Jill Yung, Big Brother IS Watching: How Employee Monitoring in 2004 Brought Orwell’s 1984 to Life and What the Law Should Do About It, 36 SETON HALL L. REV. 163, 193, n.139, [list of states with such statutes], citing Marisa Anne Pagnattaro, What Do You Do When You Are Not at Work?: Lim- iting the Use of Off-Duty Conduct as the Basis for Adverse Em- ployment Decisions, 6 U. PA. J. LAB. & EMP. L. 625, 628 (2004). 508 Pagnattaro, supra note 507, at 659, citing Hougum v. Valley Mem'l Homes, 1998 ND 24, P 40, 574 N.W.2d 812, 821. 509 See ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra note 109; Berman & Crane, supra note 502, at 1659, 1662, 1664. 510 Berman, at 1662, citing Christopher Valleau, If You’re Smoking You’re Fired: How Tobacco Could Be Dangerous to More than Just Your Health, 10 DEPAUL J. HEALTH CARE L. 457, 479 (2007). But see ROTHSTEIN, CRAVER, SCHROEDER & SHOBEN, supra note 492, citing 18 state laws protecting appli- cants. 511 MASS. GEN. LAWS c. 41, § 101A, www.mass.gov/legis/laws/mgl/41-101a.htm. 512 Town of Plymouth v. Civil Serv. Comm’n, 426 Mass. 1, 3, 686 N.E.2d 188, 189 (1997). 513 Id. at 191. 514 FLA. STAT. § 633.34 Firefighters; qualifications for em- ployment, www.leg.state.fl.us/STATUTES/index.cfm?App_mode=Display_ Statute&Search_String=&URL=Ch0633/SEC34.HTM&Title=- %3E2009-%3ECh0633-%3ESection%2034#0633.34. Applicants for positions as a firefighter in Florida must sign a tobacco affidavit. See also Florida’s firefighters support dollar a

56 firefighter’s union and the state insurance commis- sioner.515 California law prohibits an employer from re- jecting job applicants or discharging employees because of lawful conduct occurring off duty, but provides an exception for firefighters and tobacco consumption.516 Moreover, California courts have held that these provi- sions do not provide independent bases for a public pol- icy claim.517 Where state law prohibits nonsmoking policies, tran- sit agencies may consider incentive programs. Such programs must comply with the requirements under the Health Insurance Portability and Accountability Act (HIPAA)518 that employees not be charged higher pre- miums or otherwise discriminated against in provision of health insurance based on a health factor. HIPAA provides parameters under which an incentive program can be established without constituting discrimination under HIPAA.519 Where state law does not prohibit nonsmoking poli- cies, the employer must keep in mind the requirements of the Employee Retirement Income Security Act of 1974 (ERISA).520 ERISA prohibits terminating an em- ployee from an ERISA plan because of higher health care costs; a policy that prohibited smoking among cur- rent employees could be vulnerable to an ERISA chal- lenge, as one of the rationales for a nonsmoking policy is the negative health effects of smoking. However, the ERISA prohibition does not apply to job applicants, so a policy screening out smokers during the hiring process would appear not to present any ERISA liability. Takeaway: Absent state law to the contrary, a ban on off-duty use of tobacco is likely to survive constitutional challenges and stands a good chance of surviving a pri- vacy claim, particularly if the nicotine test is part of an already authorized medical exam. Some state laws that protect the right to use tobacco off duty contain an ex- emption for firefighters or law enforcement personnel because of the connection between tobacco use and health problems. That same connection provides a safety rationale for prohibiting transit operators from using tobacco off duty, particularly given the CDL re- pack increase for safer and healthier Florida, Mar. 26, 2009, www.iaff747.com/docs/FPF%20Release%203-26-09.pdf. 515 Group Seeks Ban for Smoking Firefighters, GAINESVILLE SUN, Mar. 14, 1989, http://news.google.com/newspapers?id=1QgSAAAAIBAJ&sjid= L-oDAAAAIBAJ&pg=1598,4783880&hl=en (accessed Dec. 6, 2009). 516 CAL. LAB. CODE §§ 96(k) and 98.6, www.leginfo.ca.gov/cgi- bin/displaycode?section=lab&group=00001-01000&file=79-107. 517 Nate Kowalski & Chris Milligan, supra note 503, at 38, citing Barbee v. Household Automotive Finance Corp., 113 Cal. App. 4th 525, 6 Cal. Rptr. 3d 406 (2003), Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 14 Cal. Rptr. 3d 893 (2004). 518 104 Pub. L. No. 199, 110 Stat. 2419 (1996). 519 Kowalski & Milligan, supra note 503, at 38. 520 29 U.S.C. §§ 301 et seq. quirement concerning conditions related to cardiac fail- ure, but would not have the same force as a statutory exemption. 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 col- lected in any event, are less intrusive and so less objec- tionable from a constitutional standpoint than stand- alone drug tests. Similarly, nicotine tests that are part of lawful medical exams, such as preemployment physi- cals, should be deemed less intrusive than stand-alone tests, and thus less vulnerable to legal challenge. 2. Obesity521 Federal.—The Supreme Court has explained that the ADA “allows employers to prefer some physical attrib- utes over others and to establish physical crite- ria….[A]n employer is free to decide that physical char- acteristics or medical conditions that do not rise to the level of an impairment such as one's height, build, or singing voice are preferable to others.”522 This part of Sutton does not appear to be affected by the ADAAA. Thus, for the most part, weight is not a legally pro- tected characteristic. The Second Circuit, for example, has held that a fire department did not engage in unlawful discrimination in establishing weight restric- tions and requiring firefighters who did not meet those restrictions to either meet a body fat measurement re- quirement or take an alternative physical fitness exam.523 The Francis court held that “no cause of action lies against an employer who simply disciplines an em- ployee for not meeting certain weight guidelines.”524 Cases upholding an employer’s ability to impose ap- pearance and grooming standards suggest that weight restrictions—absent countervailing state law—should be permissible, provided that they are applied equally as to race, national origin, and gender.525 If, however, an employer imposes weight restrictions that differentiate based on sex or race, such restrictions would be impermissible. Airline weight requirements imposed solely on female flight attendants or imposed 521 A bus company in Manchester, England, recently insti- tuted a 23 stone (333 lb) weight limit for bus drivers, based on the maximum safe working loads for bus seats set by the manufacturers. Dean Kirby, Bus Drivers Given 23 Stone Weight Limit, MANCHESTER EVENING NEWS, Oct. 3, 2009, www.manchestereveningnews.co.uk/news/s/1154242_bus_drive rs_given_23_stone_weight_limit (accessed Dec. 10, 2009). 522 Sutton v. United Airlines, 527 U.S. 471, 490, 119 S. Ct. 2139, 2150, 144 L. Ed. 2d 450, 467 (1999). Moreover, the EEOC Guidelines state that obesity is rarely found to be a disability. 29 C.F.R. pt. 1630 app. § 1630.2(j). See III.B.2., Definition of Disability, supra this digest. 523 Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). 524 Id. at 286. 525 Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006) (upholding requirement for female bartender to wear makeup, finding grooming standards posed equivalent burdens on male and female employees).

57 more rigorously on female flight attendants, for exam- ple, have been held to violate Title VII.526 It is also possible that an enforcement agency would accept a charge alleging that height/weight require- ments have an adverse impact on a protected class, such as women or certain ethnic groups.527 A finding of adverse impact would mean that such requirements would have to be justified as job related and consistent with business necessity. For example, a showing that a threshold BMI made it likely that an employee would suffer from obstructive sleep apnea and thus be vulner- able to falling asleep on the job might justify requiring vehicle operators meeting that threshold to be tested for obstructive sleep apnea.528 The NTSB has recommended that bus drivers be screened for obstructive sleep ap- nea.529 It is uncertain whether such a requirement 526 Gerdom v. Cont'l Airlines, Inc., 692 F.2d 602 (9th Cir. 1982) (strict weight restrictions imposed on female employees but not on male employees performing substantially similar duties held to violate Title VII); Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000) (finding weight restriction policy facially discriminatory where employer did not use equivalent ranges within height and weight tables to determine maximum allowable weights for male and female employees). 527 Response to TCRP Questionnaire from Cynthia Hyatt, Legal Counsel, State of Rhode Island Commission for Human Rights, June 15, 2009; Nina G. Stillman, The Unbearable Heaviness of Hiring: Assessing the Legal Risks of Weight- Restriction Hiring Policies, Morgan, Lewis & Bockius LLP Labor and Employment Law Seminar, Oct. 27, 2005, at 3-1, www.morganlewis.com/pubs/LEPG05_Smoke_Fired.pdf (ac- cessed Oct. 22, 2009). Stillman raises the possibility of actions under § 510 of the Employee Retirement Income Security Act (Pub. L. No. 93-406, Sept. 2, 1974) and the Health Insurance Portability and Accountability Act (Pub. L. No. 104-191, Aug. 21, 1996), topics which are beyond the scope of this digest. It appears that the risk of adverse impact of a weight restriction is greater under Title VII (for members of ethnic groups with a propensity to being overweight) than under the ADA (given the requirement for physiological cause of obesity), although the change in the requirement for being “regarded as disabled” could affect that calculus. 528 The Joint Task Force of the American College of Chest Physicians, American College of Occupational and Environ- mental Medicine, and the National Sleep Foundation has iden- tified screening recommendations for commercial drivers with possible or probable sleep apnea. These include having two or more of: BMI greater than 35 kg/m; a neck circumference greater than 17 in. in men, 16 in. in women; or hypertension. Natalie Hartenbaum, Nancy Collop, Ilene M. Rosen, Barbara Phillips, Charles F.P. George, James A. Rowley, Neil Freed- man, Terri E. Weaver, Indira Gurubhagavatula, Kingman Strohl, Howard M. Leaman, Gary L. Moffitt & Mark R. Rosekind, Sleep Apnea and Commercial Motor Vehicle Op- erators, JOEM, vol. 48, no. 9, Supplement Sept. 2006, www.acoem.org/uploadedFiles/JOEM%20Sept%2006%20- %20Sleep%20Apnea%20Supplement.pdf. 529 NTSB, Safety Recommendation R-09-9, supra note 22, at 5; Joan Lowy, Safety Board Issues Wake-up Call on Sleep Dis- order, THE SEATTLE TIMES, Oct. 21, 2009, http://seattletimes.nwsource.com/html/politics/2010104008_ap usntsbsleepapnea.html?syndication=rss (accessed Oct. 24, 2009). would be considered job related for a non-safety-related employee. Testing for obstructive sleep apnea based on BMI may be more defensible if the FMCSA or FTA issues regulations requiring screening. FMCSA guidelines describe sleep apnea as disqualifying,530 but there are no FMSCA requirements for screening for obstructive sleep apnea. 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 dis- ability 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. The preemployment physical revealed her BMI to be 57.55 percent, which required her to undergo the BOCAT, a functional seat 530 Frequently Asked Questions (FAQ)—Medical: 26. Is Sleep Apnea Disqualifying? www.fmcsa.dot.gov/rules- regulations/topics/medical/faqs.aspx?#question26. 531 National Transportation Safety Board, Safety Recom- mendation H-09-15 and -16, Oct. 20, 2009, www.ntsb.gov/recs/letters/2009/h09_15_16.pdf. 532 MCL 37.2102 Recognition and declaration of civil right; action arising out of discrimination based on sex or familial status, www.michigan.gov/documents/act_453_elliott_larsen_8772_7.p df. A Michigan court has held that a minimum height require- ment for firefighters, without showing that minimum height to be a BFOQ, violates this provision. Because height itself is a protected characteristic, a showing of disparate impact on a protected class is not required. Rather a height requirement, whether for men or women, is only allowed if it can be shown to be a BFOQ. Micu v. City of Warren, 147 Mich. App. 573, 382 N.W.2d 823 (1986). 533 Edelman, Finding Wealth Through Wellness: How Engag- ing Employees in Preventive Care Can Reduce Healthcare Costs, An Executive Guide to Corporate Wellness Programs, Fall 2006, at 11, www.edelman.com/image/insights/content/Wellness_White_Pa per.pdf. 534 D.C. CODE §§ 2-1401.01–1403.17 (2001 & Supp. 2007). Ivey v. District of Columbia, 949 A.2d 607 (D.C. App. 2008). 535 Ohio state troopers fight weight limit rule, June 2, 2009, www.msnbc.msn.com/id/31069019/ns/health- diet_and_nutrition/ (accessed Oct. 29, 2009). 536 Hines v. L.A. County Metro. Transp. Auth., B208389 (Cal. App. 2009, Nov. 6, 2009).