The Wall Street Journal reported yesterday that a Federal district court had ruled last week that obesity, by itself, may be a disability, separate from an underlying physiological condition. This confirmed an earlier article in the Wall Street Journal last month that discussed the rising risk of lawsuits on grounds of obesity discrimination.
In an article written by Gregory J. Millman, a senior columnist for Risk & Compliance Journal, and the author of last month’s article, Judge Stephen N. Limbaugh, Jr. (wonder if he’s related to you-know-who), a judge in the U.S. District Court, plaintiff Joseph Whittaker sued his employer on the grounds that his employer had “terminated his employment because of his disability and in retaliation for the charge of discrimination, threatened to terminate business with other entities if those entities employ plaintiff.”
Attorneys for the employer moved to dismiss the case, citing that obesity was not a disability under the Americans with Disabilities ACT (ADA), and they cited language from the Equal Employment Opportunity Commission (EEOC), that “except in rare circumstances, obesity is not considered a disabling impairment.”
Judge Limbaugh rejected that argument, and noted that it rested on case law that applied before the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which “rejected the unduly restrictive approach” to determining whether a plaintiff suffered from a disability. Judge Limbaugh also pointed out that the EEOC’s language had been “omitted following the ADAAA.”
The case is still in litigation, but an attorney who represents employers in labor and employment cases said that “I think we will see a lot more cases like this over the next few years.” The attorney also said “that employers should probably assume that obesity, at least severe obesity, constitutes a disability regardless of whether there is an underlying physiological condition involved, and seek a reasonable accommodation if the disability interferes with job performance.”
Corporate Wellness is one of the hottest areas of health care today, given the alarming increase in obesity among the American population. Related diseases such as High Blood Pressure, Diabetes, and Kidney Disease are something all employers need to address if some of their employees are obese.
This case, and many others like it, would suggest that rather than terminating an obese employee, employers would be better served if they kept the employee working and tried to get them appropriate medical care from a corporate wellness program. This would have a tremendous effect on the company’s health care costs, and on the employee’s self-esteem, knowing that his or her employer is looking out for their health, rather than firing them for having a disability.
In my White Paper, I discussed a case in California, in which an obese employee of a convalescent home, who fell while working as a cook, went to the Duke University clinic to lose weight. A friend had suggested he go there after his doctor and two of the employer’s doctors recommended that he lose weight. But as the employer did not direct the employee to a specific weight-loss program, the employee was free to choose he wanted to go. The Supreme Court of CA ruled in favor of the employee. (For a discussion on choice of medical provider see my posts, Employee vs Employer Choice of Physician: How best to Incorporate Medical Tourism into Workers’ Compensation and Employee vs. Employer Choice of Physician Revisited: Additional Commentary on How Best to Incorporate Medical Tourism into Workers’ Compensation).
What does this mean for Medical Tourism?
The case in Missouri described in Gregory Millman’s article, and many others that will undoubtedly follow, presents a great opportunity for the medical tourism to capitalize on the corporate wellness programs employers might consider offering their obese employees as an alternative to expensive lawsuits stemming from wrongful termination because of a disability.
This was apparent to me when I attended the Medical Tourism Association’s 5th World Medical Tourism & Global Healthcare Congress in October of 2012. Executives from American Express and Google conducted a fireside chat on the topic of innovations in global benefits and employee wellness. Other companies such as Colgate-Palmolive, Cigna, and Disney made presentations there.
Weight-loss surgeries such as gastric bypass surgery and gastric sleeve surgery are areas where medical tourism can be of tremendous value to employers with obese employees. If those employees are part of a corporate wellness program, and have been unsuccessful in losing weight through diet and exercise, may be willing to undergo surgery to lose weight.
Ruling obesity a disability will mean more of these surgeries will be performed, and with more Americans getting health care through the ACA, medical tourism destinations will be one way in which those surgeries can be obtained by employers willing to pay for their employees to have surgery. The lower cost and higher quality of care in many destinations in the Western Hemisphere region will be a further enticement to employers looking to retain these employees and avoiding lawsuits over discrimination.
What this means for Workers’ Compensation?
That a Federal judge has made a preliminary ruling in a case of employment discrimination will have serious repercussions for the workers’ compensation industry, because if this case decides that obesity is a disability, many obese workers’ compensation claimants will file claims for workers’ compensation benefits citing their work environment as a contributing cause of their obesity. That would add significant costs to the initial claim, whether from a slip and fall or some other cause of injury.
While this may take many years to work its way through the courts and through workers’ compensation boards and other entities, employers would be wise to be proactive and incorporate a wellness program in their companies, so that obese employees can lose weight through diet and exercise, or baring that course of action, get surgery to lose the weight. Workers’ compensation carriers should also consider corporate wellness as a means to prevent workers’ compensation claims from expanding beyond the initial cause of injury,
The same constraints to getting surgery mentioned above would also apply to workers’ compensation claims, if obesity is considered a compensable medical condition. Anyone worried about what effect obesity as a disability will have on workers’ compensation claims, should be willing to consider alternatives to long, drawn-out lawsuits, workers’ compensation hearings and court cases, and charges of wrongful termination because of obesity. Medical tourism could be a viable option.