In a state that requires all motorcycle riders under age 25 to wear a helmet, may an employer terminate an employee who refuses, claiming that it is his constitutional right to ride without one? That was the question posed by “Kirk”:
“I manage a courier/messenger service in Missouri and need your help. In our state, motorcycle helmets are only required for riders under 25. Some of our employees have motorcycles, which enable quickly reaching a destination in rush-hour traffic. ‘Reggie’ is one of them. He is 23, married to ‘Charlie,’ and they have a beautiful 5-year-old daughter. We require wearing helmets, but he has refused, claiming it is his right, and ‘They interfere with my sight.’ I told him it is the law, and he has an obligation to his family to not increase his risk of injury, or death, nor to expose our company to unnecessary workers’ compensation claims or increased insurance rates. I’m sure he would discuss this with you. Maybe you can get through to him. I’ve read what you’ve done in other situations.”
I agreed to a Zoom session with Kirk, Reggie and Charlie.
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What is the legal posture of this situation?
Motorcycle attorneys I spoke with all said that with a properly fitted helmet, there are no sight issues. One Kansas City attorney commented, “Spend five minutes with a widow and her children whose husband and father apparently thought it was his constitutional right to send his family into poverty.”
Next, as discussed in my recent article Can an Employer Fire an Employee for Not Wearing Glasses?, the refusal to wear personal protective equipment (PPE) on the job, such as a motorcycle helmet, is a basis for termination.
Our Zoom session
I began my discussion with Reggie and Charlie by saying, “I need your help. Let’s all listen to each other and not just hang up in anger. Agreed?” Everyone agreed.
“We all wear seat belts when driving, and know it is a good thing, right?”
Each replied, “Yes.”
“Our situation is identical to the same arguments made against requiring the use of automobile seat belts decades ago. But I have a feeling that what we are dealing with goes well beyond wearing a helmet. Reggie, I understand that you feel the requirement for you to wear a motorcycle helmet takes away from your freedom and constitutional rights. Am I correct?”
“Yes,” he said, “that’s how I feel.”
“And you’re right! In a way, it does, as I will explain, but first, you and Charlie were high school sweethearts, and when you got married, everyone said it wouldn’t last. But they were wrong, weren’t they?”
“Mr. Beaver, you got that right!”
“These are difficult times for you, aren’t they, Charlie? Because Reggie doesn’t need a motorcycle, but he rides one and without a helmet. You are terrified of losing him, of your daughter losing her dad.”
“Yes, I am,” she said, reaching for a Kleenex.
“Our government should act in and for the public good. Requiring us to wear seat belts and get rabies vaccinations for our dogs are examples of health and safety laws which are obligations that protect us and that we owe to others. Some people feel these are infringements of our constitutional rights, but the government has a duty to protect its citizens and that trumps claims of ‘it’s my right to not vaccinate my dog.’ You all agree, right?”
“Of course,” was the unanimous reply.
“Reggie, I want you to look at Charlie and tell me what you fear most.”
“That something happens to her.”
“Charlie, same question.”
“Losing him because of that horrible motorcycle, Mr. Beaver! I am so afraid each time he gets on it, especially without a helmet! I love him. He is my world, and I don’t want our daughter to grow up without his love,” she said, sobbing.
“Reggie, now, picture riding your motorcycle and discovering that asphalt really is harder than an unhelmeted head. You are now permanently brain-damaged, with a family that has lost its main income source. Look at your wife, Reggie. For all those wonderful years Charlie has loved you and given you Julie, your beautiful daughter who’s just crazy about her daddy, and then the accident changed everything. It was a thief that stole you from them. After a decent interval, while tucking her into bed, another man says to Julie, ‘Sweet dreams, honey,’ and she replies, ‘Love you, Daddy.’ And then Charlie shares what had been your bed with that same man.
“Reggie, I was 21, riding a friend’s motorcycle on Highway 126 near Santa Paula, Calif. I entered a curve covered in sand and lost control. Witnesses said that I hit the pavement headfirst. The visible memory of that incident was a destroyed helmet and, today, an almost invisible scar on my chin, the only part of my head that came into contact with the road. It was the last time that I rode a motorcycle.”
I closed our Zoom session with this question:
“Reggie, who do you love more — your wife and daughter or the motorcycle?”
Later that day
Charlie called my cell phone. “Mr. Beaver, immediately after our Zoom chat, Reggie had me follow him to a motorcycle dealer. He SOLD the bike! You saved our marriage!”
“Thanks, but please give Kirk a big hug, Charlie. He saved your marriage.”
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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