We are writing to provide you with an overview of recent medical developments and their impact on an employee’s right to an accommodation pursuant to the Americans with Disabilities Act (ADA), the New York Human Rights Law (HRL), and their jurisprudence.  Although the laws have not changed, several conditions have been reclassified by the American Psychiatric Association (APA) and the American Medical Association (AMA).  The APA has classified hoarding and binge eating as psychological disorders.  The AMA recently classified obesity as a disease.  These classifications could affect an employer’s obligation to accommodate employees.   

Pursuant to the ADA, its amendments and State law, employers are prohibited from discriminating against an employee because of the employee’s disability.  Pursuant to the ADA, a “disability” is:  (1) a physical or mental impairment; i.e., a physiological disorder or condition affecting one or more body systems and that substantially limits one or more major life activities; (2) a record of an impairment; or (3) being regarded as having an impairment.  “Major life activities” include, among other things, breathing, learning, reading, concentrating, eating and thinking.  The HRL defines “disability” more broadly than the ADA and includes:  (1) “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques”; (2) a record of an impairment; or (3) being regarded as having an impairment.  An employee with a disability has the right to request that his/her employer provide a reasonable accommodation, which the employer must provide unless it would impose an undue hardship; i.e., significant difficulty or expense. 

Psychiatric Disorder

In May 2013, the APA issued the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (the DSM).  The DSM now includes hoarding, binge eating, mild neurocognitive disorder, disruptive mood dysregulation disorder, excoriation (skin-picking disorder) and premenstrual dysphoric disorder among its classified disorders.  Employees often use the DSM to establish that they have a “disability” pursuant to the ADA and/or HRL and to support claims of disability discrimination.  In addition, New York courts have credited the testimony of doctors who have diagnosed disorders found in the DSM.  While the APA and the DSM do not provide that these disorders are disabilities, a court may rely upon the DSM classification and conclude that, pursuant to the ADA, a condition constitutes a “disability.”  At least one lower court in New York found an employee disabled after doctors diagnosed the employee using criteria set forth in the DSM.

Medical Disease

In June 2013, the AMA officially recognized obesity as a disease and outlined nationwide policies to help combat the epidemic.  While the AMA opposes the effort to deem obesity to be a disability, its recognition of obesity as a disease may affect whether an employer must accommodate an obese employee and/or whether an employer’s adverse employment action could be deemed to be discriminatory. 

The federal courts are split on whether obesity is a disability pursuant to the ADA.  The Second Circuit signaled in one case predating amendments to the ADA that “weight does not, in and of itself, constitute a ‘disability’ for discrimination qualification purposes,” but an overweight employee may be able to bring a successful claim if the employee’s weight is a result of a medical condition.  The Second Circuit has not ruled on the issue since the ADA was amended.  In a different case, the New York Court of Appeals determined that an employer violated the HRL where, during a pre-employment health screening, the employer’s doctor diagnosed a prospective employee with obesity, and the employer then rescinded its offer of employment because of that diagnosis.  This ruling preceded the AMA’s recognition of obesity as a disease.

It remains to be seen whether the courts will determine that employers are obligated to accommodate these conditions as a matter of law.  Until then, you may wish to proceed on the presumption that the courts and administrative agencies will reach that conclusion and act accordingly with regard to employee requests for accommodation.  If you have any questions with regard to whether you must provide an accommodation to an employee, please contact us. 

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2013