Adam Childers was a 6-foot, 340-pound cook in a Schererville, Ind., pizza restaurant when he was accidentally hit in the back by a freezer door in March 2007. Medication and physical therapy failed to alleviate the pain he suffered in his back and legs. In fact, the pain worsened, extending to his neck. Spinal decompression treatments also proved ineffective. The pain nearly immobilized him, and by September his weight had soared to 380 pounds.
Childers wanted back surgery to alleviate the pain, but his doctor said the surgery was "doomed to failure unless he loses some weight." In November 2007, the doctor, noting that Childers had been unable to lose weight on his own, referred him for lap band surgery "so he will lose some substantial weight and potentially improve his back symptoms and possibly even avoid surgery." Childers amended his workers comp claim to include the lap band procedure.
"For people who do manual labor, work-related injuries are common," says Sara Begley, a partner at Reed Smith. "This opens up a whole new world of treatment, and employers are left footing the bill."
She also notes that an employment decision based on a symptom of an underlying disability could be an ADA violation, even if the employer was not aware of the underlying condition. So someone who rejects an applicant based on weight could be liable if the person, unbeknownst to the employer, has an underlying condition such as diabetes.
"That makes it all the more precarious for employers to make decisions based on weight," Jakubowski says.