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Know potential legal risks when combating obesity
Recent findings that workers' compensation costs are significantly higher for obese employees may put occupational health managers (OHMs) in a tough spot. On the one hand, employers are seeing dramatic financial impact and will put more pressure on OHMs to find ways to encourage workers to lose weight. On the other hand, though, there is the potential risk of discrimination lawsuits if obese workers are treated differently.
According to employment attorney Robert J. Zech, of Seattle-based Miller Nash, obesity itself generally is not considered a disability under the federal Americans with Disabilities Act unless it is caused by an underlying disabling condition, such as diabetes. However, the scope of disabilities covered by state laws vary widely and may protect obese persons in some circumstances. An employer who chooses not to hire an obese applicant or encourages an obese employee to lose weight because of a concern the obesity may be caused by a disabling condition may be liable for disability discrimination for regarding an obese person as impaired, says Zech.
"Employer inquiries that are addressed to employee health should be narrowly tailored to job-related criteria," he recommends. For example, physical strength and stamina standards for police officers and firefighters could indirectly screen out obese candidates. Employers also must follow detailed regulatory requirements to obtain and use health-related information about their employees, adds Zech.
Employers retain wide latitude to make employment decisions on the way people look, says Zech. For example, receptionists at a health club or sales personnel at a sporting goods store probably could be selected on the basis of having an athletic build. In fact, there are some employers, such as casinos, that have gone so far as to periodically weigh employees to ensure they are in compliance with image standards that include weight restrictions. "But what is at stake here is an employer's public image, rather than an effort to screen out unhealthy employees," he says.
Employers may prefer an employee with a healthier image for some public contact jobs, says John W. Robinson IV, an employment attorney at Fowler White Boggs Banker, with headquarters in Tampa, FL. "Where does that preference for the attractive cross the line to discrimination because of race, national origin, age, or disability?" he asks. "There are no bright lines there."
Employers should consult with counsel to ensure their policies, employment records, and personnel decisions comply with federal and state disability laws, workers compensation statutes, and various laws regulating employer access to employee health information, says Zech.
Not many discrimination claims
If employees gain or cannot lose weight, incentives are a better and legally safer approach than repercussions, says Robinson. "The carrot is better than the stick, and it is the stick that tends to lead to claims of discrimination," he says.
However, some jobs do have legitimate weight limits, especially in public safety, and some protective gear may not fit obese employees, which bars them from some jobs. "That is probably lawful," says Robinson. "We don't see many morbidly obese claim discrimination." To support this claim, their jobs would have to be almost completely sedentary, he explains.
However, according to Zech, "Singling out obese employees and requiring them to exercise may violate the broad contours of disability laws." In addition, such a practice could raise a number of employee relations issues. For example, employees may well object to the degree of employer intrusiveness into their personal choices. Also, if inconsistent standards were applied to men and women or among other protected classes, discrimination claims could result. "The best practice is for employers to focus on clear job requirements and accurate measures of actual job performance," says Zech.
However, if you are encouraging healthy lifestyles and changes for all employees, it would be hard to legally challenge having different programs for different health problems, says Robinson. "Smoke cessation, skin cancer screening, blood tests for diabetes, weight reduction, and checking hypertension are all important, but not equally important for all employees," he says.
Robinson adds that he doesn't see much legal risk in telling obese employees who cannot physically perform essential job functions to lose weight in order to carry out their assigned duties. "Obese employees may ask for an accommodation to perform work, but the employer must only make reasonable accommodations," he says. "One reasonable accommodation may be a wellness program or other medical treatment."