Q: We have an employee who is unable to perform some of his essential job requirements because of physical limitations due to his weight. Do we need to provide him with an accommodation?

A: Given that almost one-third of the U.S. population is considered obese, many employers are struggling with whether to provide accommodations for employees whose weight prohibits them from performing all of their job functions. Whether obesity falls under the Americans with Disabilities Act is a hotly debated issue. Employers must juggle the cost and resources of providing accommodations with the desire to create a comfortable environment for all employees and avoid discrimination claims.

Generally, non-morbid obesity is not considered a disability under the ADA because it does not substantially limit an employee’s major life activity. Although the Equal Employment Opportunity Commission views morbid obesity as protected under the ADA, some courts have held that morbid obesity alone, in the absence of an underlying physiological condition, is not protected under the ADA.

Nevertheless, the EEOC has brought several lawsuits in recent years on behalf morbidly obese individuals,. In Louisiana, for example, an employer paid $125,000 to settle a discrimination suit brought by the EEOC on behalf of an employee who was terminated due to her severe obesity. In another case, a forklift operator in Texas requested a seat belt extender in order to perform his job safely. After refusing the accommodation, and later firing the employee, the EEOC brought a discrimination suit on the employee’s behalf. The employer later settled for $55,000.

In addition to ADA considerations, companies must also consider individual state laws, which may prohibit discrimination based on obesity or require employers to make accommodations for obese employees to enable them to perform the essential functions of their job. For example, clinically-diagnosed obesity is considered to be a disability under the New York State Human Rights Law. Likewise, New Jersey courts have found that actual or perceived morbid obesity is a protected disability under the New Jersey Law Against Discrimination.

Employers also need to be mindful of protecting employees from harassment based on their weight. According to a recent study, obese employees are 100 times more likely to experience workplace discrimination. Approximately 43% of overweight employees reported weight-related bias from co-workers and supervisors. Derogatory comments or “jokes” about an employee’s weight may form the basis for an obesity-related harassment or hostile work environment claim.

The safest path to avoid liability is to treat requests for accommodations from employees whose morbid obesity prohibits them from performing their essential job functions the same as a request for an accommodation from an employee with another form of disability. The EEOC’s position that morbid obesity is a disability, and state laws that draw the same conclusion, mean that employers who wish to challenge morbid obesity as a covered disability face a difficult and expensive battle.

Where the accommodation is relatively easy to grant – such as a seatbelt extender – employers are well advised to provide the accommodation without engaging in an analysis of whether the employee’s weight rises to the level of a disability. If the requested accommodation would impose a more serious hardship on the employer, however, and the employer wishes to challenge whether the obese employee is disabled, the employer should assess the whether the specific employee is rendered disabled by his or her morbid obesity, i.e., whether he or she is impaired in a major life activity (such as sleeping, walking, etc.). The employer may request a health care certification from the employee’s physician to evaluate whether the employee is disabled and to obtain specific information about the employee’s limitations.

Keep in mind that morbidly obese employees often suffer from other medical conditions. The employer therefore needs to assess the effect of the totality of the employee’s medical condition to determine whether that employee is disabled and precisely what restrictions the disability places on the employee’s ability to perform his or her job duties. If this analysis leads to the conclusion that the employee is disabled, then the employer is required to engage in the interactive process with the employee to determine whether there is a reasonable accommodation that would enable the employee to perform the essential functions of his or her job without causing an undue hardship to the employer.

Regardless of whether obesity is considered to be a disability, employers should train employees not to make derogatory comments or jokes about a coworker’s weight. Employers would be wise to take precautions to ensure that the workplace is free from harassment based on all disabilities, including morbid obesity.