DON’T TURN WORK COMP CLAIMS INTO EMPLOYMENT PRACTICE CASES

OBESITY CLAIMS KEEP GROWING

A recent article in Lawyers Weekly discussed a claim by a foreman at a tree removal company laid off because he was “regarded as being disabled” under provisions of the ADA , due to his obesity. According to the article, more of these claims are being filed, as more and more Americans put on more and more weight. Under the law, someone who is obese due to psychological or physiological factors, and not simply because they “overeat,” is arguably protected if their obesity substantially limits major life activities.

Here’s what EEOC regulations have to say:

“Being overweight, in and of itself, generally is not an impairment … Thus, for example, a flight attendant who, because of avid body building (which resulted in a low percentage of body fat and a high percentage of muscle), exceeds the airline’s weight guidelines does not have an impairment. Similarly, a mildly overweight flight attendant who has not been clinically diagnosed as having any medical anomaly does not have an impairment.

“On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm … is clearly an impairment. In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder. A physiological disorder is an impairment.” (See 29 C.F.R. § 1630.2(h).16)

Employers who view an employee’s obesity as a major concern should take this approach:

• Learn if the obesity is in fact interfering with job performance. If so, has it been documented and have other employees been treated similarly under similar circumstances?
• Determine if the obesity is a disability. Remember this catch 22: Even the perception that obesity is a disability creates an issue. Check the EEOC guidelines, which can be found in full at www.eeoc.gov/docs/902cm.html.
• If there is a disability, make every effort to accommodate it. Contact the job accommodation network at http://janweb.icdi.wvu.edu and seek professional advice in the process.

Remember, although we might not appreciate an employee’s personal habits or condition, the law generally requires employers to ignore these concerns unless they have a direct impact on workplace safety or productivity.

“Take time to repair the road while the sun is shining.”

John F. Kennedy
(1917-1963)

This issue discusses:

We’ve also provided hyperlinks to a free Form of the Month.

MORE PREGNANT EMPLOYEES SUING OVER DISCRIMINATION

Pregnancy bias suits have increased 39% over the last decade, EEOC finds, generally charging violations of FMLA or the Pregnancy Discrimination Act of 1978. The latter law gives entitlements to expectant employees, yet several courts have cited it when ruling for employers who terminated pregnant employees consistently late for work due to morning sickness, missed deadlines, or otherwise were below average in their job performance. Aggrieved pregnant workers generally have had more success claiming infringement upon FMLA rights, experts say.

OSHA TO CHANGE INJURY AND ILLNESS FORMS

OSHA has modified the OSHA Illness and Injury Form 300 to include an occupational hearing loss column. Employers required to use these forms must begin to use the modified forms on January 1, 2004. You can access the forms by using this link for Calendar Year (CY) 2004 and beyond. For copies of the CY 2002 and CY 2003 forms, use the link referring to those years.

CASES OF THE MONTH

Our legal staff offers this review of three top cases that might affect your business.

(PDF) (WORD)

FORM OF THE MONTH:

‘Going the Extra Mile’ Reward Form
(PDF) (WORD)

This one-of-a-kind form is designed to help reward employees who give it an “extra” effort. The bonuses need to be “discretionary’ to avoid various wage and hour issues. Communicate your expectations for using this form before you roll it out.