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October 2012

Employers Beware: Obesity as a Disability Under the ADA

If an employee requests two seats on an airplane on the next business trip because he/she can no longer comfortably fly in one seat, does the employer have the responsibility to pay for this accommodation?

Does an employer have to provide health care coverage for bariatric surgery?

More than one-third of United States adults are obese1.   Obesity is a label given for a range of weight that is greater than what is generally considered healthy for a given height.  For example, a 5’9” adult weighing 125lbs–168lbs is considered to be at a healthy weight; 169lbs-202lbs is considered to be overweight; and, 203lbs or more is considered obese.  Worldwide, at least 2.8 million adults die each year as a result of being overweight or obese; additionally, being overweight and/or obese is the fifth leading risk factor for death globally2.   Excessive weight is also attributable to a number of diseases and conditions that can result in serious injury or death including diabetes, heart disease and a number of cancers.  As obesity rates in the United States continue to grow, employers are impacted in a number of ways; and the question they must answer is whether obesity is a disability that must be accommodated under the Americans with Disabilities Act.

In the EEOC’s ADA Compliance Manual, the issue of obesity is addressed as follows:

[B]eing overweight, in and of itself, is not generally an impairment… On the other hand, severe obesity, which has been defined as body weight more than 100% over the norm, is clearly an impairment.  In addition, a person with obesity may have an underlying or resultant physiological disorder, such as hypertension or a thyroid disorder.  A physiological disorder is an impairment.

In the last two years, over 48 cases involving claimants filing disability discrimination cases based on obesity have been filed in the United States.  These suits involve not only actual discrimination based on a person’s obesity, but many involve the perceived disability of an obese employee.  Weight requirements in a job posting or assumptions about an individual’s ability to perform the job based on weight will continue to get employers into trouble unless policies are modified to account for this trend.

In September of 2011, the EEOC filed suit in the U.S. District Court for the Southern District of Texas on behalf of a 600lb forklift operator who was allegedly discriminated against on the basis of weight.  Plaintiff had asked his employer for a seat belt extender in an effort to comply with the safety requirements of his job.  The employer refused the accommodation and two weeks later terminated his employment.  Plaintiff had received positive performance reviews the previous two years and other than needing a large seatbelt, Plaintiff believed that his weight did not interfere with his job requirements.  In July of this year, the EEOC and the employer settled the matter for $55,000 and training for managers and human resource employees on the subject of discrimination laws and compliance.

In addition to not discriminating against someone because of weight, employers need to be careful in the assumptions they make about obese individuals and the potential for health problems and Workers’ Compensation claims.  When compared to employees who maintain the recommended weight, obese employees have up to 21% higher health care costs, file 45% more Workers’ Compensation claims, and miss up to seven times more work due to work-related injuries3.   Employers need to take caution in making any employment decisions based on these characteristics.  Failing to hire someone because you are concerned that they will file a Workers’ Compensation claim in the future may result in a finding that you perceived the applicant as disabled and thus violated the ADA.

What are the “takeaways” for employers?  A request for accommodations from obese employees, especially those with an underlying or resultant physiological disorder, should be treated as a request for accommodation from a person with a disability.  The employer should work with the employee in an interactive process to determine if reasonable accommodations exist.  Second, all employers should be proactive in dealing with the increasing problems associated with obesity in the workplace.  The creation of a wellness program, which is carefully crafted so as not to discriminate against obese individuals, is just one way an employer can attempt to create a healthier, happier, and less litigious workplace.



Employment Law

Employment Law