Q: Is “obesity” a disability under the Americans with Disabilities Act (ADA) and, if so, do I need to accommodate an employee who requests a workplace accommodation on the basis of their obesity?

A: In some jurisdictions, yes. Generally speaking, the ADA considers obesity to be a disability only if it is caused by an underlying health condition, such as Cushing Syndrome or diabetes. However, the federal circuits have reached differing conclusions on this issue.

The majority of federal courts hold that obesity is not a physical impairment under the ADA unless it is caused by (or is a symptom of) an actual or perceived underlying physiological disorder, including the U.S. Court of Appeals for the First, Second, Third, Sixth, Seventh, Eighth and Eleventh circuits.

Many other courts have not yet addressed the issue. Therefore, obesity may be considered a disability in the U.S. District Court for the Fourth, Fifth, Ninth, Tenth and D.C. circuits.

At this time, no federal appellate court has held that obesity is, in itself, a disability. However, several federal district courts and state courts have reached this conclusion, including the district courts in Texas, Mississippi and Louisiana, and state courts in California, D.C., Florida, Montana, New Jersey, New York, Oregon and Washington.

Employers must remain aware that their state and municipal laws could provide broader definitions of qualifying conditions than those contained in the ADA. Several states and localities have passed laws prohibiting discrimination on the basis of height and weight (including cities in New York, California and Wisconsin, as well as the state of Michigan).

In addition to potential claims being raised under state and local laws, obesity-related claims could be raised under the ADA if the employee can come forward with a viable claim that their employer perceived them as disabled due to their obesity and discriminated against them as a result. Such a claim might be premised upon a job qualification that excludes obese individuals without an identifiable legitimate business need or upon a discrete employment decision such as a claim of failure to hire or promote.

Given the evolving state of the law, it is always prudent to regularly review policies, practices and employee manuals. Care should be given to ensure compliance with federal as well as state and local laws, and job descriptions should be regularly reviewed to ensure all required qualifications are legitimate and appropriate for the position.

As a word of caution, employers should be sensitive to potential arguments that an employee was discriminated against because their employer “regarded them” as disabled on the basis of obesity/weight. For example, an employee may bring a claim for disability discrimination if their employer terminates them from their position based on a job qualification or policy forbidding anyone with a BMI over 35 from working in a safety-sensitive role on the basis that they have a higher risk of experiencing an incapacitating medical condition. Unless a condition presents a current safety risk (not the risk of a potential future impairment), an employee may be successful in establishing unlawful, discriminatory behavior.

Therefore, for all employers, it may be good practice to consider adding size and height to existing policies, procedures and training materials related to employment discrimination. Further, employers should review an employee’s job qualifications to ensure that all listed qualifications (e.g., lifting and bending requirements) are narrowly tailored to meet only the requirements of the particular job.

As always, in all jurisdictions, it is important to document, review and respond to all requests for reasonable accommodation in a timely manner. Employers are encouraged to seek legal assistance to implement the policies appropriate to their workplace needs and obligations.