And you know what else isn’t an ADA disability? Morbid obesity, says another federal court.

Yesterday, I wrote about a recent Second Circuit opinion in which the appellate court held that an employee with migraine headaches who requested a transfer to another supervisor didn’t have a disability under the Americans with Disabilities Act. That’s because his physical impairment didn’t substantially limit him from working.

That is, he could work broad range of jobs, just not in one particular position for a specific supervisor.

Today, we’re going to head down to the Fifth Circuit and talk about a situation that we have explored before here at The Employer Handbook; namely, whether a morbidly-obese employee has an ADA disability.

And since you read the title of this blog post, you know the answer.

But before I explain why, at the risk of pushing my luck with too many Coronavirus/COVID-19 updates, I’d like to offer you a supplement to Wednesday’s post. That is, my partner, Amy Epstein Gluck, and I published a FisherBroyles client alert, “You Have Coronavirus Questions In Your Workplace? We Have Answers.” Since clients are asking, we wanted to take an opportunity to compile some of these questions and answers for your workplace to provide our corporate clients and friends with some workplace guidance during this rapidly evolving situation.

Some of you are clients 😀, others aren’t 😪. Either way, if you want a copy of the client alert, email me, and I’ll hook you up.

Fifth Circuit Court of Appeals, please explain to my readers (from this opinion) why, in this particular instance, the plaintiff’s morbid obesity was not an ADA disability:

[E]ven assuming that [Plaintiff]’s obesity is a physical impairment, there is no evidence that his weight limits his life activities in any way, and [Plaintiff] testified emphatically that it does not. Thus, [Plaintiff] has not shown that he suffers from a disability, and summary judgment was proper on [Plaintiff]’s ADA discrimination and hostile work environment claims.

Now, what if an employer refuses to hire someone who is overweight because the company is concerned that the employee may develop future health issues? Does that violate the ADA? No and no.

It’s akin to a company that refuses to hire smokers. Perfectly legal under the ADA, although, maybe not so much under the off-duty conduct laws of many states.

But, wait just a minute! Whether it’s smoking or morbid obesity, could the applicant/employee have a “regarded as” disability discrimination claim?

Nope. That’s because the ADA’s “regarded as” prong defines “disability” as “being regarded as having [a physical or mental] impairment.” That means now, not later. In other words, an employer does not regard someone as having a disability if it is concerned that this non-disabled person may develop a disability later.

But, before you get all risk aggressive on overweight employees, just remember that there may be an underlying disability that caused the weight gain. And firing someone then could cause problems for you, especially if you’re aware of that underlying disability.