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Employment Practices Liability: AMA Classifies Obesity as a Disease

Employment Practices Liability AMA Classifies Obesity as a DiseaseEmployment Practices Liability: Will We Be Seeing More Lawsuits Filed under the ADA?

In June, the American Medical Association (AMA) made news when at their annual meeting the organization officially recognized and classified obesity as a disease instead of a condition. According to Dr. Patrice Harris, a member of the association’s board, “Recognizing obesity as a disease will help change the way the medical community tackles this complex issue.” She suggested the new definition would help in the fight against Type 2 diabetes and heart disease, which are linked to obesity.

This new classification has employment law officials concerned about the impact it can have on the workplace. Employees who are obese may now be more likely to be recognized as disabled with rights under the 2008 amendments to the Americans with Disabilities Act (ADA). This can end up as a significant liability risk and cost for employers, considering that one-third of American adults are classified as obese, in addition to another one-third considered overweight. According to the Centers for Disease Control and Prevention (CDC), the U.S. obesity rate jumped nearly 50% from 1997 to 2012.

The AMA’s new definition of obesity doesn’t in itself have any force of law, “but there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled,” said Myra Creighton, a partner at national law firm Fisher & Phillips, who specializes in advising employers about their obligations relative to workers with disabilities. “It may be easier for employees to prove disability discrimination,” Creighton said. “And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment.” According to disability law, impairment is something that affects a major life activity or body function – and that could include walking or sitting.

Indeed, just last month the first such lawsuit has been filed since the AMA’s new definition. In the case, a self-described “severely obese” Missourian has sued his former employer in federal court for allegedly firing him because of his weight. He alleges that “severe obesity … is a physical impairment within the meaning of the ADA,” and that his employer regarded him as being substantially limited in the major life activity of walking. He claims that at all times he was “able to perform the essential functions of his position with Defendant, with or without accommodation.”

A similar lawsuit was in fact settled last year after the Equal Employment Opportunity Commission (EEOC) had sued a BAE Systems subsidiary in Houston for disability discrimination. The EEOC had charged that the company regarded an employee as disabled and fired him because of his obesity even though he could perform his job. To settle the case, the company agreed to pay the fired worker $55,000 and cover his outplacement services, train managers in disability law compliance, and post anti-discrimination notices in the workplace.

Now with the new AMA classification, these types of lawsuits could portend a potential emerging risk. “Employers should avoid any suggestion that the employee’s weight suggests the employee cannot do a particular job,” said Creighton.

Employment law attorneys and human resource officials are looking to the EEOC to see whether its definition of a disability will go beyond its current “morbidly obese” distinction. That generally means someone weighs twice the normal body weight. “Even if the EEOC does not rush to expand the definition of disability, employers should be aware that overweight employees may still be protected under the ADA,” wrote attorneys Shannon Morales and Elizabeth Rudnick in a recent article on a legal blog post.

Under federal disability law, even if employees aren’t morbidly obese and aren’t limited in life functions, they still may qualify as protected by law if the employer “regards” them as impaired.

Therefore, workers passed over for hiring or promotion because of obesity may be able to show they were denied jobs because the employer regarded them as impaired.

Implementation of best employment practices is key in helping to stem potential lawsuits, including the design of comprehensive employee handbook that clearly outlines the company’s philosophy, its hiring and firing practices and procedures, anti-discrimination policies, and much more. In addition, Employment Practices Liability Insurance is a key coverage to secure for all types of and size businesses across all industry sectors in the event of employee discrimination, sexual harassment and other related workplace lawsuits.

Axis Insurance Services, LLC is a leading professional and management liability insurance specialist, and offers employers Employment Practices Liability Insurance (EPLI) coverage, including to large corporations and small businesses. Give us a call at (877) 787-5258 to discuss our insurance programs.

Sources: NY Times, Kansas City Star, AMA, CDC

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Blogged on: August 20, 2013 by Mike Smith
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