Employers often express concern about obese employees in physically demanding jobs or jobs that involve driving a motor vehicle. Obesity causes increased risk of numerous conditions that can cause sudden incapacitation, such as heart attack or stroke. It is also linked with sleep apnea, which can cause exhaustion. As a result, employers often fear that an employee’s obesity creates a safety risk for the employee, fellow employees, and, in some cases, the public. However, employers are skittish about benching these employees for fear of potential liability under the Americans with Disabilities Act (“ADA”).
Employers in Indiana can take some comfort in that the Seventh Circuit Court of Appeals issued several opinions in 2019 that have narrowed the scope of employees who are protected under the Americans with Disabilities Act (“ADA”) due to obesity. While this is encouraging for employers, the current state of the law challenges common sense and makes an employer’s evaluation more—not less—complex.
First, the Seventh Circuit held that obesity alone is not a physical impairment under the ADA unless there is evidence that obesity is caused by an underlying physiological disorder or condition. While Richardson is positive for employers because it forecloses carte blanch ADA protection for every obese person, it adds complexity for employers who must now consider whether an employee’s obesity is caused by an underlying physiological disorder or condition before making employment decisions. Furthermore, what specific policy goal does the Richardson rule promote? If obesity is not an “impairment” that qualifies under the ADA, why should obesity be protected when it is the manifestation of an underlying physiological disorder? Surely the employer is not making its decision to remove an obese employee from a safety sensitive job on the basis of the employee’s thyroid disorder that caused or contributed to the obesity. Unfortunately, that policy question is one for congress—not the Seventh Circuit—and congress isn’t solving many problems these days.