Is Obesity a 'Serious' Medical Condition?
Question: Is obesity considered a serious medical condition under the Americans with Disabilities Act? Also, is it a condition the employer would have to provide a reasonable accommodation for? We have an employee who is morbidly obese, has asked for us to provide him with a bariatric-sized chair (that costs a couple thousand dollars), and to place him in a ground floor office so that he does not have to take the stairs, even though we have very limited ground-floor office space.
Answer: What you are probably asking is whether obesity may constitute a "disability" that may be subject to a reasonable accommodation under the ADA. The answer is yes - if the employee satisfies certain criteria. At least one court has rejected an employer's arguments that an individual's weight cannot be considered a disability, particularly in light of the 2008 amendment to the ADA expanding the scope of employee protections under the ADA. Lowe v. Am. Eurocopter, LLC, No. 1:10 CV 24 A-D, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010), and another specifically observed that obesity alone, even without an identifiable physiological cause, may constitute an impairment without further medical proof. EEOC v. Res. for Human Dev., Inc., 827 F. Supp. 2d 688, 693 (E.D. La. 2011). Notably, the American Medical Association recently voted to officially classify obesity as a disease.
What is inherent in your question is the concern that this employee may be able to claim disability discrimination if his accommodation requests that are related to his weight are not granted. To establish a disability discrimination claim for a failure to accommodate a disability under the ADA, the employee must demonstrate more than the existence of a mere "impairment." He must demonstrate that his impairment (his weight) amounts to a "disability" because it substantially limits one or more major life activities or bodily functions. 42 U.S.C.§ 12102(1)(A). The employee must further show that he is a "qualified individual with a disability," which means that he must demonstrate that he can perform the essential functions of his job with or without reasonable accommodation. Id. § 12111(8). If an employee can establish all of these elements, then an employer is prohibited from taking adverse action against the employee on the basis of that employee's obesity, and the employer is required to provide a reasonable accommodation to address that employee's disability upon request.
As a result of this framework, an assessment of whether a given employee's obesity renders that employee a "qualified individual with a disability" under the ADA necessarily depends on the specific facts and circumstances of the employee's physical condition and employment. If the employee can demonstrate that his obesity substantially limits any major life activity (e.g., walking) or bodily function, and that he can perform the essential functions of his job with or without a reasonable accommodation, then the employer must provide the requested accommodation -- a bariatric chair and ground floor office -- so long as the accommodation is reasonable.
In your specific situation, whether this obese employee's request for a bariatric chair and a ground-floor office are, in fact "reasonable" accommodations is determined on a case-by-case basis and depends on the facts and circumstances of your company and its offices, as well as the relevant jurisdiction's interpretation of the ADA. ADA situations are not one-size-fits-all, and for each situation it is important that your organization engage in a good-faith interactive process with this employee to clarify his needs, to explore whether the accommodations he requests are, in fact, reasonable, or whether or not there are other accommodations that would be reasonable for the employer and acceptable to the employee. In a few jurisdictions, the burden is on the employer to show that the accommodation is not reasonable and would impose an "undue hardship" on the employer. E.g., Chiari v. City of League City, 920 F. 2d 311, 317-18 (5th Cir. 1991).
An undue hardship is an action that is excessively costly, extensive, substantial or disruptive, or that would fundamentally alter the nature or operation of the business. In most other jurisdictions, however, the employee must meet a modest burden of showing that a requested accommodation is reasonable on its face, and then the burden shifts to the employer to show that providing the accommodation would impose an undue hardship. In most of these jurisdictions, a plaintiff simply needs to show that the costs of the accommodation do not clearly exceed its benefits. Roberts v. Royal Atl. Corp., 542 F.3d 363, 370 (2d Cir. 2008); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995). Some other jurisdictions may expect the employee to provide more evidence that the accommodation exists and is reasonable before the burden shifts to the employer. E.g., Reed v. LePage Bakeries, Inc., 102 F. Supp. 2d 33, 35 (D. Me. 2000) (collecting cases), aff'd, 244 F.3d 254 (1st Cir. 2001).
Given this backdrop, at least one of this employee's specific requests (the bariatric chair or a ground-floor office) may be considered reasonable by evaluating courts because federal regulations define a "reasonable accommodation" as, among other things, "modifications or adjustments to the work environment." 29 C.F.R. § 1630.2(o)(1)(ii). Further, courts have specifically held that a request to use a special type of chair in the workplace may constitute a reasonable accommodation. E.g., Melluzzo v. Public Advocate, LLC, No. 8:05 CV 307-T24 (TBM), 2006 WL 5159197 at *4, n.3 (M.D. Fla. May 31, 2006). Indeed, a federal court in Connecticut found that a plaintiff satisfied his burden of showing that the provision of an ergonomic chair costing more than $1,000 was a reasonable accommodation. Worthington v. City of New Haven, No. 3:94-CV-00609 (EBB), 1999 WL 958627 (D. Conn. Oct. 5, 1999).
Employers should also keep in mind that an overweight or obese employee may also be deemed a "qualified disabled individual" regardless of whether that employee's weight actually limits a major life activity or bodily function if his or her employer perceives the employee to be disabled due to weight. 42 U.S.C. § 12102(3)(A). Therefore, employers should be mindful not to generalize or make assumptions about the physical abilities of employees who are, or appear to be, overweight.
Keisha-Ann G. Gray is a partner in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Laura Deck assisted with this article.