Could you be liable for employee weight problems?

Could you be liable for employee weight problems? – Up Front

Lori Widmer

Could that vending machine chock full of snacks become litigious fodder for an obese employee? When U.S. Surgeon General David Satcher reported that an estimated 300,000 Americans die each year from fat-related causes, rumblings of who’s responsible began.

While many would argue that obesity is a personal responsibility, some think the food industry should be held liable. Some nutrition and legal experts point to fast food and vending machine contents for some of the blame.

John Banzhaf, professor at George Washington University Law School, Washington, D.C., lays claim to being the originator of the movement to hold the food industry liable for obesity. “If in fact the amount of fat in say a double cheeseburger is a large amount, which it most likely is, then a failure to clearly, conspicuously and prominently disclose it could give rise to a cause of action. In most fast food places, the information isn’t there. The one thing I’ve never seen is an ad on television that features these luscious, three-decker cheeseburgers where it says that this product contains more than twice your daily allowance of fat.”

According to a study by the Centers for Disease Control in 1999, the prevalence of people who are overweight among U.S. adults aged 20 to 74 years has increased an estimated 2 percent since 1980, increasing from 33 percent to the 35 percent of the population in 1999. In the same population, obesity has nearly doubled from about 15 percent in 1980 to an estimated 27 percent in 1999.

In fact, an estimated 300,000 Americans die each year from fat-related causes, and we spent $117 billion in obesity-related economic costs in 2001, according to a report by the U.S. surgeon general in December.

“It’s not ridiculous if you look at it from the legal perspective,” Robert Wellman, director of risk management at Risk International Services Inc., Cleveland, Ohio. “If there’s a case to be made and the attorneys can pinpoint a direct causal relationship between employment and obesity or employment and any disease, it could be a covered peril, and a very definite financial hazard for a corporation.”

When you consider a 1993 lawsuit brought against the Golden Arches netted one woman $480,000 from a burn she received from hot coffee, anything’s possible. Another couple sued McDonald’s when a hot pickle from a hamburger fell on the woman’s chin and burned her. The couple sued for more than $100,000, citing the “defective condition” of the hamburger.

But even Banzhaf says such a lawsuit against employers would be difficult to prove. The biggest issue, he says, is causation. “When you talk about heart attack, which is the primary cause of death through obesity, it’s difficult to figure out the role obesity played in that heart attack. Assuming that we could definitively say that this man’s heart attack was 30 percent caused by obesity, it is almost impossible to blame 2 percent on McDonald’s, 3 percent on Burger King, 4 percent on Haagen-Dazs. That kind of suit is not likely to happen.”

Another factor is whether or not food is a condition of employment. Wellman says: “Workers’ compensation benefits in almost every state of the union would not get paid if an employer made eating or overeating a condition of employment, such as a food-testing laboratory. In that case, there’d be a direct causal relationship between obesity and employment.”

According to Joan Schmit, professor of risk management and insurance at University of Wisconsin-Madison, “In the United States, workers are typically barred from recovery against employers for suits outside workers’ compensation unless they can show intent to harm or actions clearly outside the work conditions. Under these circumstances, I have difficulty imagining a successful suit against an employer for a vending machine full of fatty foods.”

Yet Schmit says that a case could be made for an obesity-related suit if the employee can demonstrate that the obesity was caused by either the vending machines, that there was lost income and/ or medical expenses because of the obesity, and that there was something about the work setting that made the vending machines an important source of food, say an employer who didn’t allow employees to leave the building during lunch.

Wellman says: “It’s a stretch. Having said that, litigation takes on a life of its own. Take the guy who lost all the weight at Subway. What if someone down the road says his limited diet led to cancer directly attributable to the kind of food he was eating at Subway? That could he a causal relationship.

COPYRIGHT 2002 Axon Group

COPYRIGHT 2002 Gale Group