It is no secret that the U.S. has a weight problem. We all hear the news about how American waistlines continue to expand, the various theories behind what is causing the trend and endless advice to reverse it. The American Medical Association has even labeled it a disease. Many workplaces have employees who are overweight. But news headlines and miracle diet commercials aside, how many have employers have truly considered the impact that obesity may have on their workforce, and whether it is a disability under the law? As an ongoing case in Nebraska shows, this is an area for employers to tread lightly.

In that case, a job applicant, Mr. Melvin Morriss III, claims his potential employer reneged on a job offer because of his weight, which, he alleges is a disability under the Americans with Disabilities Act (ADA). Mr. Morriss was five foot ten and weighed 282 pounds when he applied for work at BNSF Railway Company. He claims he passed all the required tests to become a machinist and received a conditional job offer from the company. The offer hinged on his passing a physical exam. Mr. Morriss agreed to the physical exam which revealed he was “morbidly obese.” A company medical review officer determined, citing company policy, that Mr. Morriss was not qualified for the “safety sensitive” machinist position due to significant health and safety risks associated with his obesity. The company rescinded his conditional offer because of the exam results and under company policy.

The question now at issue in the case is whether Mr. Morriss’s morbid obesity is simply a physical characteristic posing health and safety risks, as claimed by the company, or a physiological disorder and a “disability” covered under theADA, as Mr. Morriss claims. Even the AARP has weighed in on the topic, filing a brief supporting Mr. Morriss’s claims that morbid obesity is a disability that has “pervasive harmful bodily effects” including straining the heart, and damaging joints. Complicating the issue, and cited by the lower court in its decision that Mr. Morriss is not disabled, Mr. Morriss claims that he has no impairments that limit his ability to perform the job, does not need an accommodation and does not have any medical reports indicating a disability due to his obesity.

While not the first time this issue has be raised or litigated, this recent case shows that it is still an unresolved topic and one to which employers should be sensitive. Under existing law, if obesity is the result of a physiological disorder, it is a disability under the ADA. Here, Mr. Morriss does not have an underlying physiological disorder causing his obesity, but claims that morbid obesity is a physiological disorder in its own right. Regardless of the outcome here, this case offers yet another reason employers need to exercise caution when the ADA is implicated. Being overweight is simply one example of a situation in which the employer is likely to have limited information – it is unlikely to be clear (and perhaps not matter) if being overweight is the underlying condition or a symptom or complication. And such unknowns will make it tricky trying to understand what options might need to be considered as reasonable accommodations. And, to state the obvious, lots of people are sensitive about their weight, so trying to engage in the interactive discussion required by the ADA is likely to be an even tougher than normal task if being overweight is part of the concern.

The issue of employee and applicant obesity is not going away anytime soon. When faced with considerations like the company in this case, employers should remember to consider the possibility that obesity may be a disability under the law and to carefully document how they make employment decisions about overweight employees.