Federal discrimination laws protect individuals from discrimination in the workplace on the basis of race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 and older), disability, or genetic information. Obesity, however, is noticeably absent from protection under federal law as well as most state laws. As a result, sizeism, or weight-based discrimination, remains a prevalent issue, with more than 40% of U.S. adults experiencing weight stigma at some point in their lives, according to the American Psychological Association (APA). According to the Centers for Disease Control and Prevention (CDC), 42% of Americans are obese , making this a significant and widespread concern. Sizeism, like other forms of bias and discrimination, not only causes suffering and psychological distress but also increases the risk of mental health problems, such as substance abuse and the risk of suicide, according to the APA. While federal laws have yet to address weight-based discrimination, some states and municipalities have begun recognizing the need for change. Likewise, some federal and state courts have interpreted disability laws to provide protection. Currently, Michigan is the only state to make weight-based discrimination illegal. Four states, Massachusetts, New York, New Jersey, and Vermont, have recently introduced bills dealing with weight-based discrimination. New York City, Washington, D.C., and San Francisco are among a handful of U.S. cities with local ordinances that prohibit discrimination based on weight or appearance. At this time, Arizona, Colorado, New Mexico, Utah, and Wyoming have not taken legislative action to address obesity as a protected class. The majority of federal courts hold that obesity is not a physical impairment under the Americans with Disabilities Act (ADA) unless it is the symptom of an actual or perceived underlying physiological disorder or condition, such as diabetes. These courts have relied on interpretive guidance from the Equal Employment Opportunity Commission (EEOC) on the definition of “impairment” under the ADA. Recently, federal district courts in Texas, Louisiana, and Mississippi have determined that, even absent an underlying physiological disorder, obesity could be an actual or perceived disability under the ADA. Likewise, state courts in Washington, Montana, and New Jersey, have interpreted state statutes to include obesity as a disability. By taking proactive measures, employers can protect themselves from potential liability. Employers should refrain from employment decisions based on physical characteristics absent a legitimate job-related requirement. Employers in states where obesity may be treated as a disability should review their disability policies and include size, and make sure managers are trained on the policies. Additionally, employers should accurately state job descriptions to reflect the essential functions and demands of the job. These steps help contribute to a more equitable and supportive work environment for all employees. This is an area to watch as more legislatures and courts consider the issue of obesity as a protected class. If you have any questions about workplace discrimination, please contact the Employers Council Member Experience Team.

As an employer, it is vital to understand the differences between employees and independent contractors. An employee is an individual with whom a business has established an employment relationship. An independent contractor is an individual or business with whom a business has established a contractual relationship. In a contractual relationship, each party’s obligations to the other are agreed upon in advance and can change only if renegotiated by both parties. An employer, on the other hand, has broad discretion over the work assignments, duties, and schedule of an employee and can make significant changes at any time as business needs change. Understanding the differences can help employers avoid the negative consequences of misclassification. And following a recent National Labor Relations Board (NLRB) decision, employers should keep in mind that they will face a stricter test when trying to classify workers as independent contractors. This Employers Council article explains more about the decision.

As a reminder, the Pregnant Workers Fairness Act (PWFA) , a new federal law, goes into effect on June 27, 2023. The PWFA applies to employees and applicants of employers with at least 15 employees. The Equal Employment Opportunity Commission (EEOC) is charged with enforcing this law, and regulatory guidance is pending. The PWFA requires employers to provide reasonable accommodations to employees and applicants affected by pregnancy, childbirth, or related conditions. Some examples include the following:  Closer parking Additional break time to use the restroom, eat, and rest Modifications of food and drinking policies Appropriately sized uniforms or safety equipment Time off or flexible scheduling for prenatal or postnatal appointments The PWFA also has several prohibitions, including the following: Requiring an employee to take leave if another accommodation would work Retaliation for requesting accommodations or reporting unlawful discrimination Denying employment opportunities based on the need for accommodations Requiring employees to accept an accommodation without engaging in the Americans with Disabilities Act (ADA) interactive process Don’t confuse the PWFA with the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The PUMP Act requires employers to provide reasonable break time and private, non-bathroom space for nursing employees to pump for a nursing child’s first year of life. The following resources provide more information about protections for workers affected by pregnancy, childbirth, and related conditions: Employers Council - Accommodations for Conditions Related to Pregnancy or Childbirth EEOC - Legal Rights of Pregnant Workers under Federal Law EEOC - What You Should Know About the Pregnant Workers Fairness Act Employers Council - Find relevant laws for all 50 states in the CCH multi-state tool . If you would like more information the PWFA, please reach out to Employers Council to discuss membership options at sales@employerscouncil.org .

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Assisted living operators are often involved in Adult Protective Services investigations, but unless the facility has been the recipient of APS legal action, the facility may not find out what happened or what APS learned because APS investigations are often considered confidential.

Enjoy pictures from the recent tour of Assisted Living providers on the Western Slope

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