Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

A startling finding from a recent study on employee and employer attitudes toward obesity was that only 2% of the participants considered themselves obese while 26% of those surveyed met or exceeded the body mass index criteria for obesity. Perhaps overcoming denial is the first step in dealing with obesity as well. 

The study was conducted by the Strategies to Overcome and Prevent (STOP) Obesity Alliance, whose website has a wealth of information about obesity.  STOP notes that obesity costs up to $45 billion annually in medical expenses and work loss and that absenteeism accounts for approximately 30% of this cost.

Among the studies other findings are:

·         Nearly 90% of employees believe worksite exercise facilities and healthy food in the cafeteria help to achieve and/or maintain a healthier weight;

·         Employees, especially obese employees, strongly support financial incentives to participate in workplace wellness and obesity programs. More than three quarters support health insurance premium discounts or other incentives for participating in health risk appraisals, 70% for participating in weight management programs, and 66% for participating in health coaching; and

·         Involvement in employee weight issues presents an ethical dilemma for employers. 68% of the 154 human resource professionals in the survey believe a company does not have the right to regulate employees’ weight but nearly half favor an obesity surcharge for health insurance.

Obesity is sometimes referred to as “the next smoking,” meaning that once employers have programs in place to address the additional workplace costs of smokers, implementing programs dealing with the increased costs related to obesity is next. The STOP report refers to a 2007 study entitled “Obesity and Workers’ Compensation: Results from the Duke Health and Safety Surveillance System,” which studied the relationship between obesity and workers compensation. The study suggested that obese employees (1) file twice as many workers comp claims, (2) have seven times higher medical costs, and (3) 13 times more lost work days than non-obese employees.  Those are three good reasons for employers to consider implementing obesity and wellness programs.

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President Obama earlier this month signed “Rosa’s Law” which replaces the term “mental retardation” with “intellectual disability” in federal education, health and labor laws. Named after a young girl in Maryland with Down Syndrome whose family successfully led the effort to change the terminology in Maryland, the law states that for purposes of the amended statutes and implementing regulations, a reference to an “intellectual disability” shall mean a condition previously referred to as “mental retardation” and a reference to “individuals with intellectual disabilities” shall be a reference to those previously referred to as “individuals with mental retardation.”   Based on the federal government’s change in terminology, watch for more states to pass similar measures.    

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The EEOC this week sued a grocery store chain, claiming it had violated the ADA by firing an employee due to her 10 pound lifting restriction. The case is worth watching since it deals with an employer’s ability to change the essential functions of a job which results in terminating an individual who had been a qualified individual with a disability prior to the change, but was no longer so.  

According to the EEOC’s press release. Kimberly McMillan-Goodwin, a gas station clerk, had successfully performed her duties with the lifting restriction for years. When she returned from a leave, the employer “claimed it had changed the position so that she could not longer perform her job with her long-standing restriction, and that it had no other positions she could perform.” The employer then placed her on a one year leave of absence, and terminated her at the end of that period, according to the press release.  In its Complaint, the EEOC alleges that McMillan-Kimberly was a “qualified individual with a disability …and could perform the essential functions of the position from which she was removed.” Because theEEOC’s Complaint is pled so broadly, it is unclear whether the EEOC is alleging that McMillan-Kimberly could perform the essential functions of the changed position or that Woodman’s changed the job because of her lifting restriction, or some other theory.

We have visited this issue before.Recall once again the incontinent court reporter, hired as a control room specialist, whose job changed when the chief judge required all court reporters to rotate through all courtrooms.  The Seventh Circuit affirmed summary judgment for the employer, holding that “an employer is not required to maintain an existing position or structure that, for legitimate reasons, it no longer believes is appropriate” and that the plaintiff was not a qualified individual with a disability for the changed position.  The EEOC’s 1992 Technical Assistance Manual recognizes that jobs may change: “The ADA does not limit an employer's ability to establish or change the content, nature, or functions of a job.”

But recall also our post on the Workplace Prof Blog, which opined that an employer’s ability to change essential functions is an ADA “loophole.” “After the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!,” the Prof said.

Neither the EEOC’s press release nor Complaint against Woodman’s indicate the reason Woodman’s changed McMillan-Goodwin’s job.    We will be watching this case for further judicial guidance on the “changed jobs” issue. But in the meantime, tread carefully when changing the essential functions of a disabled employee’s position which would result in that employee no longer being a qualified individual with a disability for the changed job.

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