When are overweight employees considered ‘Disabled’?
Is obesity a disability? Until recently, the answer has been “Fat chance!” But that may be changing. A recent ADA court ruling opens the door to some types of obesity being defined as disabilities.
The ADA defines a disabled person as one with “a physical or mental impairment that substantially limits one or more major life activities.”
In most cases, obesity in and of itself is not a disability under the ADA. But some argue that in extreme cases, called “morbid obesity,” the effects should be classified as disabilities under the ADA.
The ADA also covers employees whom employers regard as disabled, even though they’re not. Consequently, employers violate the law when they treat overweight employees as if they are disabled and those employees can perform the job’s essential functions.
America is growing, and that’s not good. Morbidly obese Americans, defined as those having a body mass index of 40 or more or weighing 100 pounds more than their ideal weight, are the fastest-growing group of overweight people.
Employers who shy away from hiring these super-sized employees out of fear their health care costs will grow with equal gusto, may soon feel the weight of litigation.
Employers did receive some good news recently when a federal appeals court ruled in the case of a morbidly obese man fired from his loading dock job. (EEOC v. Watkins Freight Lines, 463 F.3d 436, 6th Circuit, 2006)
In that case, a man weighing 400-plus pounds injured himself after breaking a rung on a ladder.
The company’s policy called for the termination of workers who took more than six months of disability leave. The company also required the man to have a doctor sign a waiver permitting him to work before he would be allowed to return. The man obtained the release just before the six months were up.
The employer rejected the release because the doctor who completed it didn’t know the worker’s job duties. The release was returned to the doctor with a request to fill it out in light of the worker’s actual duties. The doctor never returned it.
In the meantime, the company referred the man to an in-house doctor for a physical. The in-house doctor concluded that the man’s weight prevented him from performing the job safely. The company terminated him.
In court, the EEOC argued that the employer regarded the large man as disabled when he wasn’t. But the court looked at the ADA’s wording. Remember, the ADA defines a disability as a physical or mental impairment that substantially limits a major life activity.
The court ruled that obesity not caused by some underlying physiological problem is not an impairment. Therefore it is not a disability and, as a result, the man was not covered by the ADA.
It’s important to recognize the flip side of this ruling: That obesity due to a physiological cause (such as a hormone imbalance) can be a disability.
HOW TO COMPLY
Employers cannot ask employees questions whose answers are likely to reveal a disability. So, asking employees why they are so fat is not only socially inappropriate, it is illegal.
However, if the employee requests a reasonable accommodation for his or her weight, the EEOC says you can “require an employee to provide documentation that is sufficient to substantiate that he or she has an ADA disability and needs the reasonable accommodation requested.”
Disabled employees can request an accommodation if it’s necessary to perform the essential functions of their job. Once the employee requests the accommodation, the ADA requires you to engage in an interactive process to arrive at a reasonable accommodation.
Employers don’t have to agree to the specific accommodation the employee requests, but must document every decision they make concerning possible accommodations.
Final tip: Some employers run into trouble because their job descriptions don’t match the position, are out of date or do not specifically list the job’s essential functions. The accommodation process is dependent on knowing the essential functions. Keeping these descriptions up-to-date is vital when defending an ADA lawsuit.
Also, in the Watkins case, the employer was able to defend itself by showing that the worker posed a safety hazard to himself or others. If you can prove that, you can terminate the employee without looking into possible accommodations.
FMLA considerations for overweight employees
Morbid obesity and its many side effects may meet the definition of a “serious health condition” that qualifies the employee for FMLA leave. Consequently, employees that qualify—those with one year’s service who have worked 1,250 hours in the current or previous calendar year—are eligible for up to 12 weeks of unpaid leave for treatment of serious health conditions.
Employers that fire employees who have used or intend to use FMLA leave run the risk of being sued for FMLA retaliation.
Any termination should be based on objective criteria, such as lack of production, safety concerns or misbehavior. All such incidents should be thoroughly documented as per standard company policy.