An Indiana-based healthcare system received significant media coverage during the late summer regarding its intent to charge employees a penalty fee starting in 2009 unless they meet weight, cholesterol, and blood pressure guidelines set by the healthcare system, according to recent news story in the Chicago Tribune.

This is not the first employer to impose such fines on employees and probably not the last, but fining employees for not taking better care of themselves could be a dangerous road to travel.

Bernard E. Jacques, a partner and specialist in labor and employment law with the regional law firm Pepe & Hazard, LLP, which has offices in Connecticut and Massachusetts, cautions employers planning to fine employees for being overweight. "If a person is obese because of some disease or is morbidly obese, such that he or she has a disability within the definition of the Americans with Disabilities Act (ADA), you'd be violating the ADA by fining that person," says Jacques.

Although the definition of a disability within the ADA is very narrow and an employee just being overweight would not place him or her within its protection, the reason for the excessive weight could. For example, psychiatric medications often include a side effect of significant weight gain for individuals taking them. Weight gain could be a side effect of medication taken for a psychiatric disorder, which, depending on the disorder's nature, may become a disability under the ADA.

Note: The ADA defines a disability as a physical impairment or disability that prevents or severely restricts an individual from doing activities that are of central importance to most people's daily lives (Toyota Motor Manufacturing, Kentucky, Inc. v. Ella Williams, No. 00-1089, U.S. Supreme Court, 1/8/2002).

"The ADA also bars inquiries that would lead to the discovery of a disability," explains Jacques. "So, the very fact that you're asking a person about being overweight could be a medical inquiry under the ADA and would be prohibited."

Be Aware of State Laws

In addition, many states have laws prohibiting discrimination against the disabled. Jacques explains, "In Connecticut, they define a disability very broadly so you may not have a disability under the federal system [ADA], but you could have a disability under the state law. Connecticut defines almost any chronic condition as a disability."

Another state law of which an employer could run afoul is one that prohibits employers from making decisions based on employees' activities off the job, says Jacques. "Suppose I am overweight, because I like to eat hot dogs and drink beer [on my own time]. You can't use a lawful activity as the basis for an employment decision [in many states]."

Reward Instead of Penalizing

Jacques suggests that instead of using employee health concerns in a punitive way and punishing employees for their conditions, employers could use health in a rewarding way. He provides the example of a police department offering incentives to police officers engaging in physical activities that boost cardiovascular health. "Similarly, private employers would be better served by using incentives in terms of time [paid time off to engage in physical activity such as taking an aerobics class]," he notes. He suggests that on-site exercise classes, such as walking or running clubs for employees with different fitness levels, could be set up.

Jacques concludes, "Setting up a punitive system for people who are overweight faces significant legal risk [for employers], while setting up a system that encourages healthy behavior is more likely to achieve your objective at much less risk."