The Rising Tide of Obesity: Managing Your Risk as an Employer

Recent Federal Court Decision Deems Obesity a Disability Under the ADA
Studies estimate the rate of obesity in this country to be at an all-time high – over one-third of adult Americans are now considered clinically obese. As this trend has risen over the years, many courts have grappled with the question of whether obesity may be considered a disability under the Americans with Disabilities Act (ADA) such that employers must offer accommodations to their employees whose obesity interferes with their job performance. A recent federal court decision out of Louisiana adopted the EEOC’s liberal view on this issue, holding that obesity on its own may be considered a disability under the ADA, even absent a showing of an underlying physiological disorder – something other courts have required in the past.

In EEOC v. Resources for Human Development, Inc. (827 F.Supp.2d 688 (E.D. La. 2011)), the employee at issue supervised the employer’s day care program and weighed over 500 pounds. Although she had received exemplary performance reviews, she was ultimately fired based on concerns over her “limited mobility” and difficulty performing CPR. The employee later died due to complications from her obesity, but the EEOC brought suit on her behalf, arguing that a person with “severe obesity” (which they defined as having body weight in excess of 100 percent above normal) is disabled under the ADA. The employer, on the other hand, argued that there must be a showing of underlying physiological disorder – such as a cardiovascular or respiratory problem – in order to bring the condition within the meaning of a “disability” under the ADA. The employer’s position was supported by holdings in several other federal court cases. The court, however, was not persuaded, and adopted the EEOC’s broader standard.

Although no court in California has similarly recognized obesity as a disability in and of itself under the ADA or FEHA, California employers should consider the Louisiana decision a harbinger of a more liberal approach to the issue. Employers who encounter obese employees seeking accommodations under the ADA should consider seeking legal advice before dismissing such requests outright.

Employee Wellness Programs Are Increasingly Popular, But Not Without Risk
In an effort to confront the problem of obesity in the workplace before it becomes an issue, many employers are implementing wellness programs. Wellness programs encompass a broad array of approaches to incentivizing healthier lifestyles and promoting health and wellness. Some offer rewards for adopting healthier habits such as losing weight or quitting smoking, and some simply encourage employees to have better nutrition or to be more active. The most typical arrangement rewards participants in the program with reduced health plan premium costs (which are usually automatically deducted from paychecks), but other common examples include gift cards or additional paid time off as incentives for participation or reaching certain specified goals. Studies show that up to 60% of employers now offer some type of wellness program to their employees.

Implementing these programs can appear to be a win-win for employers, as they may result in workers losing weight, becoming healthier, avoiding costly medical issues, and missing work less frequently. However, employers should be aware of certain pitfalls that may accompany workplace wellness programs. Employers should avoid implementing wellness programs that are too aggressive, such as requiring employees to undergo a health risk assessment. The ADA states that such assessments must be voluntary, so participation cannot be a standard for employment. In addition, the recently implemented Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking about employees’ genetic information, so questions about family history may violate the law. Moreover, the Health Information Portability and Accountability Act (HIPAA) forbids employer medical plans from charging higher rates based on health status – so a health assessment or wellness program designed to ferret out smokers, for instance, may violate HIPAA. (There are exceptions to this provision for employer wellness programs that meet certain criteria, such as providing alternative rewards to employees who cannot or should not achieve a particular health goal.) Finally, employers should take care not to allow certain employee health information to fall into the hands of those making employment decisions. A terminated employee could easily allege that he was fired not based on his job performance, but rather because of a health condition that may be protected under the ADA.

The potential for liability should not dissuade employers from implementing wellness programs at all. Such programs have proven successful in improving employee health and morale and reducing health care costs. If in doubt about the legality of such programs (or certain provision in such programs), employers should seek legal advice.