Thursday, June 20, 2013

American Medical Association Creates Millions of New "Individuals With Disabilities"

At its June 18, 2013 annual meeting, the American Medical Association decided a new "policy":

Obesity as a Disease 
Today, the AMA adopted policy that recognizes obesity as a disease requiring a range of medical interventions to advance obesity treatment and prevention.
“Recognizing obesity as a disease will help change the way the medical community tackles this complex issue that affects approximately one in three Americans,” said AMA board member Patrice Harris, M.D. “The AMA is committed to improving health outcomes and is working to reduce the incidence of cardiovascular disease and type 2 diabetes, which are often linked to obesity.
The link is here.

Although the effect of this "policy" will have on employment law is unclear, the move could significantly increase ADA / disability discrimination and impose huge new reasonable accommodation obligations on employers. Why? Courts in the past generally have found that obesity in and of itself is not a covered "disability," but its effects (like high blood pressure, type 2 diabetes, heart disease) could be.  (We wrote about this some time ago here.)  If obesity itself is not a disability, the employer would not have a duty to accommodate an obese worker merely because the employee desired adjustments to the work area, for example. It should be noted, though, that some courts more recently have begun to recognize that significantly overweight people might have disabilities or at least be "regarded" as disabled.  The ADA Amendments Act's looser definition of "disability" is making it easier for courts to hold that an employee with nearly any impairment has a disability.

Anyway, if the AMA's recent policy results in more protection for the overweight as "disabled," without a showing of medical complications, then there could be a significant expansion of the duty to accommodate. Employers may have to take into account the obese in office space planning, ergonomics, etc.  What about physical job requirements?  And what of employers who do not hire the obese, or who require / encourage "wellness" plans for the heavyset?  Obese applicants, too, may be able to claim they were not selected due to their disability without any showing that the employer was aware of a latent disability.  

Of course "obesity" is a medical term and does not apply to all overweight people.  And it's too early to know what the AMA's policy statement will mean. But it's worth keeping an eye on this issue and planning for the future.