Q & A

From New Mexico

Question: Our city police department is held to the State of New Mexico’s standards on physical fitness for new applicants. They vary according to age and gender of the applicant. I was told that is a big no-no. Two questions…can we be sued for this and what can we do to correct the problem?

Answer: Here’s the difficulty with age and gender-graded physical fitness tests.
Under the Americans With Disabilities Act, an employer (or state licensing agency, for that matter) can only have physical tests for the job that disproportionately impact those with disabilities if it can establish that the tests are “job-related” and “consistent with business necessity.” Since physical fitness tests almost by definition have a disproportionate impact on those with disabilities, they must meet these standards.

Let’s set aside for the moment the question of whether age and gender-graded tests are “job related,” though a federal court in Pennsylvania questioned whether they were. The real problem with them is the “business necessity” prong of the legal standard. To put the matter pointedly, if the age and gender-graded standards result in a 48-year-old woman passing an aerobics test by running a mile and a half in 20 minutes, how can any stricter standard ever be consistent with business “necessity”? After all, isn’t the employer admitting that an individual who can run a mile and a half in 20 minutes can perform the essential functions of the job?

Local employers are in a difficult position if it is a state licensing agency that uses these types of tests. Potentially, not only the state licensing agency but the employer as well could be liable if the tests are found to be discriminatory. We advise local employers to raise the issue with the state agency, and if necessary to do so repeatedly and pointedly until the state agency revises its testing standards.

For what it’s worth, you’re far in the minority on this one. Many agencies, realizing the difficulty with age and gender-graded standards, have moved away from them in recent years.

From Rhode Island

Question: Can a department order a person to attend a seminer while he is on vacation? If so, do they have to pay him overtime because he is on approved vacation on the days of the seminer?

Answer: The answer to your first question will entirely depend upon the wording of the collective bargaining agreement. There are no federal laws that deal with the issue of vacation time. As to your second question, vacation time off does not count as “work” for purposes of the FLSA. Thus, there would be no FLSA requirement to pay overtime for the seminar, and any right to overtime would arise under the collective bargaining agreement.

From Ohio

Question: We are a union representing a Sheriff’s Office in Ohio. We have an employee who was just given a written repremand for filling out FMLA paperwork to assist her common law husband of 11 years after a surgery. They adivsed her she should have known that the FMLA does not cover common law marriages. Her response is that they lived in Nevada for more than five years before moving to Ohio, and Nevada law considered them married. Does the Family and Medical Leave Act cover a common law spouse of 11 years?

Answer: The FMLA could cover a common law spouse, but only in states where common law marriages are recognized as valid. The fact that a common law marriage may have been recognized as valid in another state where the employee previously lived would not matter if the current state in which the individual is employed does not recognize common law marriages.

This article appears in the September 2008 issue