Employers should accommodate obese workers to avoid disability claims

Employers should do what they can to accommodate obese employees, legal experts say.

Laura Sack, a shareholder at law firm Vedder Price P.C. in New York, said, “The prudent employer, when faced with requests for accommodation by disabled individuals, should evaluate those requests on an individualized basis, as opposed to stating a blanket rule that, "Obesity is not a disability, therefore we're not required to accommodate you.'

“Also, I think the prudent employer does not make a judgment call that because someone is obese, they are not qualified to perform a particular job, absent actual facts that truly support that conclusion,” she said.

Margaret J. Grover, an attorney with Kronick, Moskovitz, Tiedemann & Girard in Walnut Creek, Calif., said, “You don't have to provide every accommodation that an employee requests, but an employee might request time off to have some kind of medical intervention,” such as surgery, “and I would recommend that (employers) give them the extra time off if they are reasonably able to do so,” although “you might want to work with them on scheduling, so it doesn't come at your high season.”

Martha J. Zackin, of counsel at law firm Mintz, Levin, Cohn, Ferris, Glovsky & Popeo P.C. in Boston, said if an employer has a performance issue with an employee who is morbidly obese and the employee claims discrimination based on disability or obesity, “whatever issues might arise out of the obesity must be distinguished from the performance issues.”

Eric E. Kinder, a member of law firm Spilman, Thomas & Battle P.L.L.C. in Charleston, W.Va., said, “My advice to employers right now would be not to dramatically or drastically change what they're doing, but to make sure their (human resources) professionals are attuned to the fact that individuals who are obese or significantly overweight are getting more protection under the EEOC, just making sure that employment decisions are factually supported with documentation when they're making employment decisions regarding those individuals.”