Social Determinants of Employability

By: Judge David Langham

In the law, we have all learned that defendants “take the plaintiff as we find him” or “her.” This is a “rule” or legal maxim that essentially holds that there are people that are perhaps more susceptible to injury than others, based upon our physical frailty, or even personality. What might be an inconvenience to one might be a much more serious injury to another.  Essentially, we all react to our environment and life events, physically and emotionally, in our own personal manner. In personal injury litigation, this has been referred to as the “eggshell plaintiff” maxim (if a particular plaintiff has a frailty, such as a thin skull, is more susceptible to injury, “the defendant is still liable for all the damages that occur”). 

This maxim is applied in injury cases, both civil and criminal. As the Florida Supreme Court noted many years ago, “it is well settled in Florida that a criminal takes his victim as he finds him and ‘can not be excused from guilt and punishment because his victim was weak and could not survive the torture he administered.’” Swan v. State, 322 So.2d 485, 487 (Fla. 1975). The logic is apparent. But, what if someone could pick who they injure? Hold that question, we’ll return to it.

There has been a great deal of recent discussion regarding the “social determinants of health.” Rafael Gonzalez is a long-time workers’ compensation scholar, author, and thought-leader. He recently wrote “a person’s social, environmental, and behavioral characteristics contribute more to prolong disability than access to health care and genetic predisposition.” He notes that despite this knowledge, workers’ compensation “continues to focus its resources on what accounts for only a small percentage of health outcomes.” He laments that “many in our work comp industry are still surprised to learn” of the impacts of these “social” factors. 

The Office of Disease Prevention and Health Promotion (www.healthypeople.gov) explains that “health starts in our homes, schools, workplaces, neighborhoods, and communities.” It notes important factors such as: “eating well and staying active, not smoking, getting the recommended immunizations and screening tests, and seeing a doctor when we are sick.” And, it notes that “our health is also determined in part by access to social and economic opportunities.” In short, it concludes that “The conditions in which we live explain in part why some Americans are healthier than others and why Americans more generally are not as healthy as they could be.” 

A recent article by Kimberly George and Mark Walls focused on “social determinants.” These two leaders have likewise been studying workers’ compensation for many years, speaking, writing, and otherwise leading the discussion of both what workers’ compensation is and what it could become. Their article urges that “looking at an injured worker holistically and considering his or her overall situation can prevent so-called ‘creeping catastrophic’ claims.” They note an increasing awareness of “social determinants” on the “healing process and a worker’s ability to return to work.” There the authors point us to seven categories for focus. Though these are merely examples, they suggest: “economics, environment, transportation, nutrition, support, culture, and understanding.” 

Certainly, our diet (“nutrition”) impacts our wellbeing, as well as many perceptions of our health. I know a great many people who tell me they feel better when they eat better, and the same for exercise (“culture” or “environment”). Similarly, worry is a burden. When one is worried about the next mortgage/rent payment, the resulting stress may be at best a distraction and at worst could affect our physical wellbeing. Likewise, taking medication correctly (“understanding” or “compliance”) seems to challenge many of us. In a recent New England Journal of Medicine article, two authors assert that “about half of patients with chronic diseases don’t take their medication as prescribed.” It seems we are, collectively, not good at following directions. And, those are merely examples.

At the heart of this discussion is that we are all flawed human beings. We are each disinclined to, or distracted from, eat right, exercise, and even follow directions sometimes. Perhaps individually, we are all a bit of a mystery as Winston Churchill once described Russia: “it is a riddle, wrapped in a mystery, inside an enigma.” Are all humans similarly complex, unpredictable, and distractible?

Let’s return to the law and hiring. In America, we have laws in place that prevent employment discrimination based upon race or national origin (U.S. Const. am. 5., 14.,). There are restrictions to prevent discrimination based on age (The Age Discrimination in Employment Act of 1967 (ADEA; 29 U.S.C. § 621 to 29 U.S.C. § 634). There are constraints regarding discrimination against those with disabilities (Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 328 (1990)). There are constraints to prevent discrimination based upon sex (Title VII of the Civil Rights Act of 1964). There are more; these are only examples. 

But what if employers elected not to take their employees as they find them? Might an employer elect not to hire a perfectly capable candidate because she/he does not exercise regularly, is perceived to eat indiscriminately, smokes, or is perceived as lacking coping skills, effective financial management skills, or an effective support system of family or friends? What if a prospective employee lacks dependable transportation, lives in a neighborhood perceived as not “safe,” or simply seems disengaged from her/his community?

In other words, might the “social determinants of health” be translated into the “social determinants of hiring?” Might those with the most to gain from a new job (better earnings, economic access to transportation, a better neighborhood, better food, health insurance, etc.) be less likely to be hired because of this “determinants” discussion of the complications such a prospective employee might pose? Might consideration of the “determinants” harm people who just need a chance to thrive?

Alternatively, might employers seek to enhance the social determinant status of existing employees, after hiring but before any work accident? Forbes reports that “70% of U.S. employers currently offer a general wellness program” of some degree. And, that is predicted to increase. Forbes asserts that “as the cost of health care continues to rise, employers are turning to prevention to keep expenses low.” This includes support for those with chronic medical conditions, smoking cessation, and “annual health assessments.” The article cites “the Affordable Care Act as the primary driving force.” Perhaps we must consider whether that cost incentive may be less pervasive in the post-mandatory obamacare world. 

National Public Radio reported in April this year that “workplace wellness programs . . . are an $8 billion industry in the U.S.” This story reports on a recently published study revealing that wellness-engaged employees “self-reported healthier behavior than those not enrolled.” However, those “efforts did not result in differences in health measures, such as improved blood sugar or glucose levels, how much employers spent on health care or how often employees missed work.” The authors discuss what motivates employee wellness participation, noting “in one interesting point, that study found that wellness-program participants were likely already healthier and more motivated.” Thus, there may be arguments that such programs are more likely to maintain health than to improve it?

Some will question whether a work injury is incentive to improve wellness. That is, if someone is not eating well before an injury, are they likely to after? If one does not engage in regular exercise, would she/he be more likely to following a work accident? Will a family’s economic situation, housing, transportation, or support system be likely to improve following a work accident, work absence, surgery, or devotion to physical therapy or other treatments? Though there is discussion of the determinants in a post-injury setting, is that the most likely time for determinants to be affected to result in success (of treatment, return-to-work, etc.)?

Perhaps there is little likelihood of employers considering the “social determinants” in making hiring or retention decisions. However, it seems that the potential at least exists. Is the better employer course to focus, with incentive, on the wellness approach? As the discussion continues, there will be more on the holistic post-accident approach. Perhaps that discussion will focus beyond the “whole person” in a post-accident setting to instead a focus on the “whole person” from hiring and beyond. Time, as they say, will tell.