TICKET TO RIDE: MUST EMPLOYERS REASONABLY ACCOMMODATE?

Suppose you have an employee who claims he is too large for a regular airline seat, so when you send him to travel on company business, he wants first-class tickets to accommodate his larger size. Can you tell the employee that he must fly on company business in standard seating?

It depends on whether the employee is merely overweight or obese. Even if the employee is obese, however, courts are split on whether mere obesity not caused by a physiological condition (such as a thyroid disorder) is a disability that must be accommodated under the Americans with Disabilities Act (“ADA”).

It is generally accepted that merely being overweight is not a disability that must be accommodated. So, if your employee is merely overweight or large-framed, you may treat him like any other employee and tell him the company will only pay for standard seating, and if he wishes to fly first class, he must pay the difference.

On the other hand, if the employee is obese (generally defined as 20-30% above the average weight for someone of that age, sex, and height), you may have an obligation under the ADA to engage in an interactive process with the employee to determine if his condition requires a reasonable accommodation, which could include purchasing first class tickets (or two coach class seats). Even in cases of obesity, however, courts have reached different conclusions whether obesity is a disability under the ADA.  For example, in 2011, a court in Louisiana found that severe obesity qualifies as a disability under the ADA regardless of whether it is caused by a physiological disorder.  But last year, a court in Illinois found that severe obesity not caused by an underlying physiological disorder does not constitute a disability under the ADA.

The safest course would be to inform your employee that you are treating his request as one for an accommodation under the ADA. This would enable you to ask for documentation of his condition, such as a letter from his doctor, describing his weight, whether it qualifies as severe obesity, and whether it is caused by a physiological condition.  If you determine that the employee suffers from severe obesity, you would be well-advised to have your legal counsel check what the latest opinion of the Equal Employment Opportunity Commission and the latest holding of the courts in your jurisdiction are on the issue before deciding whether you will purchase or decline to purchase larger seating for the employee.

Mark Jeffries focuses his practice in the area of labor and employment law. He has represented employers in wrongful discharge and discrimination cases in state and federal court, as well as before the West Virginia Human Rights Commission and the U.S. Equal Opportunity Commission.
 
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