By Max Mihelich
Mar. 11, 2014
Perceptions regarding obesity are changing in the courthouse and the medical community. The American Medical Association announced in June 2013 that it considers obesity to be a disease, bringing itself in line with a movement started four years earlier by the U.S. Equal Employment Opportunity Commission.
While obesity — defined as having a body mass index of 30 or higher — has been a topic of significant discussion in the United States for many years, the AMA’s announcement last summer brought the issue to the forefront for many employers, said Kathy Helms, a partner at the law firm Ogletree, Deakins, Nash, Smoak & Stewart in Columbia, South Carolina.
Increasingly, employers worry obesity will lead to more absences, lower workforce productivity, and negatively affect workers’ compensation, in addition to increasing insurance and benefits costs, according to legal experts.
National obesity rates in adults and children have been consistently rising since the 1980s. According to the U.S. Centers for Disease Control and Prevention, 30.5 percent of U.S. adults were considered obese in 1999, while 35.7 percent currently fall under the designation.
‘Most employers get themselves in trouble from an informal aspect. … They look at an employee and think they can’t do their job because they’re obese.’
— Kathy Helms
In its announcement, the AMA provided an analogy of why it considers obesity a disease: “The suggestion that obesity is not a disease but rather a consequence of a chosen lifestyle exemplified by overeating and/or inactivity is equivalent to suggesting lung cancer is not a disease because it was brought about by an individual choice to smoke cigarettes.”
Obesity in the workplace has been an evolving subject for at least the past couple of decades, legal experts said. Before the Americans with Disabilities Act Amendments Act of 2008 expanded the definition of disability, obesity in and of itself wasn’t considered to be one. Usually there had to be an underlying cause, such as hypothyroidism, for an obese individual to be considered as having a disability.
That attitude is changing. With the expanded definition of disability, the new AMA position on obesity, and the EEOC defending the condition in disability discrimination claims, employers have had to shift their approach on the subject.
For one, obesity being treated as a disability in and of itself in the legal system means there’s potentially a greater number of employees who could have a disability and therefore more employees who could require an accommodation to perform the essential functions of their jobs.
Increasingly, employers are defending against disability discrimination claims brought by obese employees, Helms said. Sometimes employers assume employees are unable to perform their jobs with or without accommodation simply because of their obesity.
“From a disability standpoint, most employers get themselves in trouble from an informal aspect,” Helms said. “They look at an employee and think they can’t do their job because they’re obese. It’s the perceptions and attitudes — the informal side of things — that get employers in trouble.”
For example, in 2012 a disability discrimination case was settled in which Resources for Human Development’s Family House, a Louisiana-based social services organization, allegedly fired one of its addiction prevention and intervention specialists, Lisa Harrison, on the basis of her obesity. The court ruled Harrison’s obesity qualified as a disability under the ADA, and that she was wrongfully terminated because she was still able to perform the essential functions of the job.
Wellness programs, on the other hand, provide for the formal aspects of obesity in the workplace. Such programs were, in part, developed as one way for employers to address obesity, explained Daniel Sulton, a shareholder in the benefits and executive compensation group, also at Ogletree Deakins’ Greenville office.
Wellness programs can have a positive effect on the bottom line in terms of dollars spent on health plans and reducing workplace injuries, Sulton said.
There are two types of wellness programs that employers can offer: those that are tied to a health plan and those that aren’t. Programs tied to health plans may offer employees a reduction in health insurance premiums if certain criteria, such as a lower BMI, are satisfied. Programs that are not tied to health plans are often weight-loss challenges where the incentive for the employee to participate is simply to be as healthy as they choose to be.
There are “all sorts of laws — like the ADA, HIPAA, GINA — that employers have to be thinking about when they establish these [wellness] policies in the workplace,” Sulton said. “What the EEOC has said consistently is that it’s fine to have these kinds of [wellness] programs if they are not job-related. They must be voluntary if they’re not job related.”
The EEOC has established job-relatedness as the key component for employers addressing obesity in the workplace. In fact, given the recent developments surrounding obesity, legal experts expect there will soon be an even stronger push toward making obesity a disability in and of itself.
“With the AMA announcement, the issue started to pick up steam. It had already started to get rolling, but it’s going to pick up more steam now,” Helms said.
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