Can an Employer Fire an Employee for Not Wearing Glasses?

“I own a construction company that has 30 employees. We build houses, small commercial offices, and I’ve got a humdinger of a story for you. One of our people — 40-year-old Terry, who is a highly skilled carpenter everyone likes — needs to have his vision checked out by an eye doctor, as he is having difficulty with a number of tasks. For example, his night driving is scary! He misses off-ramps. He has mismeasured where to saw two-by-fours, resulting in expensive wood being effectively lost. He squints, rubs his eyes, has trouble reading, and when we suggest that he probably needs to get glasses, replies, ‘I don’t want to look ugly and old!’

“We are worried about him, as he is becoming a risk to our business. If he refuses to be seen by an eye doctor, may I fire him? I don’t want to — he is married, and they have adorable twin daughters — but sooner or later, he is going to hurt himself or someone. Mr. Beaver, may I ask a favor? You pull rabbits out of a hat when you get an employee and the boss on a conference call and work out a positive resolution. Would you consider trying to convince Terry to be seen by an eye doctor? Thanks, ‘Scott.’”

When to see the eye doctor

I ran Scott’s question by a longtime friend, Dr. Bill McDonald, who practiced optometry for more than 40 years. He believes that Terry needs to see an optometrist or ophthalmologist, and the sooner the better, explaining:

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• He is out of focus. If you are near-sighted, you should not mismeasure unless you are really nearsighted.
• This affects his night driving, because when you are in the dark, your pupil opens to let more light in. When it is bright, it closes down. If you are in focus, the size of the pupil only affects brightness. But if you are out of focus, a big bundle of light, and focusing wrong, makes a big blur. A small bundle of light, focusing wrong, makes a small blur. That’s why people who are out of focus squint, as they are using their eyelids to narrow the opening, to narrow the blur. So, if he is squinting, he is out of focus. While he was able to accommodate for these visual issues when younger, now he is facing the reality of Middle Age Sight and no longer can — which is why he needs glasses.
• In response to his fear of “looking old,” someone should tell him, “You are not going to get old if you have a wreck and kill yourself! You don’t have to wear glasses, as contacts might be possible or potentially Lasik eye surgery. And, you might not need to wear glasses all the time, but give it a try — wear them only when you need them.”

Could Terry lose his job by refusing to deal with these sight issues?

I ran these facts by Southern California-based labor lawyer Dan Klingenberger. He began his analysis with a warning: “Terry is an accident waiting to happen, and Scott does not have the luxury of time to wait and see what happens next. He should take these steps now.”

• Send him to the company’s occupational doctor for a fit-for-duty type of an exam, based on the problems that Terry is experiencing.
• It is likely that the occupational physician would say that Terry can’t return to work until he gets an OK from a specialist. Scott could act on that finding and not permit Terry to return to work — not necessarily terminating him immediately, but not returning him to work.
• If Terry refuses to cooperate, then Scott could take more aggressive action, such as putting him on a leave of absence and eventually terminating him because of the safety risk.
• In jobs requiring personal protective equipment, such as goggles, the refusal to wear them allows the employer to discipline and terminate the employee.

Conference call

Since Scott asked, I got them both on the line and said, “Terry, I need your help to keep you on the job, and I have a hunch that your refusal to wear glasses goes very deep.”

“How could you possible know that?” Terry asked. “You’re right. As a kid, I wore glasses briefly in elementary school. I was bullied, and everyone mocked me, saying how ugly I was, that it made me look like an old man! I came home crying and stepped on the glasses, smashing them!”

“You love your daughters, right?” I asked.

“Of course I do.”

“Scott doesn’t want to fire you!” I said. “Now, you can get a pair of glasses in a couple of days. Do that, and you will be welcomed back. Right, Scott?”

“Right,” Scott said.

One week later

Scott phoned my office. “Terry asked for a week off, and I agreed. He returned today, wearing glasses! Everyone gave him a round of applause, and the office gals gave him a great big hug. We’ve never seen him so happy! But, Mr. Beaver, there was one problem.”

“What was that?” I asked.

“We ran out of Kleenex!”

Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.

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