On the hook for bariatric surgery

An Indiana Court of Appeals ruling last month favoring an obese employee is likely to make employers think twice about hiring
overweight people.

That’s the take of Brandon Shelton, an attorney at the Indianapolis office of employment
law firm Ogletree Deakins.

The appeals court backed a lower court and the workers compensation board in affirming
that a pizza joint in northwestern Indiana not only must pay for back surgery for a 340-pound worker hurt on the job, but
also for bariatric surgery to improve odds of the back surgery succeeding.

A January amendment to the Americans
with Disabilities Act boosts the likelihood that employers are prohibited from discriminating against overweight people in
the hiring process, although no regulatory interpretations or court cases have explicitly stated this.

Now that
precedent is set for Indiana employers’ being on the hook not only for an injury, but also for a preexisting condition
(obesity), more employers will quietly reject obese applicants, Shelton predicts.

“Whether that’s unlawful
is an entirely different question,” he says, making clear that it indeed would be unlawful.

How the workers
compensation board and lower courts will apply yesterday’s ruling is an interesting question. Is obesity now considered
a preexisting condition? If so, are employers are on the hook to pay for obesity in an unrelated work injury?

The
pizza shop case is a classic case of bad facts leading to bad law, Shelton believes. Obesity didn’t cause the injury;
yet, obesity now could be considered a preexisting condition.

Shelton, by the way, notes that the appeals court
followed Indiana precedent in its ruling, so the court wasn’t out of bounds. What are your thoughts?

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