A federal appeals court recently held that morbid obesity alone is not a disability pursuant to the Americans with Disabilities Act (“ADA”).In the case of Richardson v. Chicago Transit Authority, Mark Richardson was a bus driver for the Chicago Transit Authority (“CTA”). In February 2010, Advanced Occupational Medicine Services (“AOMS”) – CTA’s third-party medical provider– concluded that since Richardson weighed over 400 pounds and suffered from uncontrolled hypertension, he was unable to operate a bus.The bus seats were not designed to accommodate drivers weighing over 400 pounds and the medical exam outlined several safety concerns. He was moved to Temporary Medical Disability – Area 605 (“Area 605”), a budgetary assignment for union employees “who have been found medically unfit to perform the essential functions of their job classification due to an illness or injury.” In October 2011, when Richardson was approaching two years of inactivity, CTA informed him that he could “extend his time in Area 605 by one year by submitting medical documentation.” Richardson failed to do so and was terminated.

Richardson then filed suit claiming ADA violations. At issue was “whether Richardson can demonstrate either: (1) his extreme obesity is an actual impairment; or (2) CTA perceived his extreme obesity to be an impairment.” On the issue of actual impairment, the court noted that other courts have held that “obesity is an ADA impairment only if it is the result of an underlying ‘physiological disorder or condition.’” The court concluded that “without evidence that Richardson’s extreme obesity was caused by a physiological disorder or condition, his obesity is not a physical impairment.” On the issue of perceived impairment, Richardson argued that he is still disabled under the ADA because CTA perceived his obesity to be a physical impairment.” But Richardson did not present any evidence to support this inference. To the contrary, the evidence suggested that “CTA perceived Richardson’s weight as a physical characteristic that made it unsafe for him to drive.” Thus, the court affirmed the judgement of the lower court for CTA.

This case shows that federal courts are unlikely to recognize morbid obesity as a disability under the ADA. Employers are presently not required to make reasonable accommodations for employees solely based on the employee’s morbid obesity. However, if morbid obesity is part and parcel of a physiological or psychological impairment then the person will be considered disabled. Employers confronted with employees that are morbidly obese need to proceed with caution when determining if the employee is disabled and owed an accommodation.

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Rhode Island recently joined a growing list of states with laws limiting the ability of employers to use non-compete agreements in the workplace. Employers often insist that employees sign non-compete agreements which would restrict an employee’s ability to work in the same field and geographic area as the employer for a limited period of time, such as six months to a year after the employment relationship ends. Although courts have always required such agreements to be limited in scope and reasonable in their effect, many employers continued to insist that their employees sign such agreements anyway, even if the terms were overly onerous on the employee.

This summer, the Rhode Island General Assembly passed the “Rhode Island Noncompetition Agreement Act” (Act). The Act is primarily aimed at protecting so-called “non-exempt” employees, graduate students, underage workers, and workers earning less than 250% of the poverty level (i.e., $31,225 for 2019). A non-exempt employee is generally one who is eligible for overtime, is paid hourly (not salary), and earns less than $455 per week. Clearly, the Act is intended to relieve lower-paid and younger workers from the effects of non-compete agreements and to permit non-compete agreements only where they are truly and reasonably necessary to protect an employer’s legitimate business interests, such as in connection with the sale of a business or where the employee is highly compensated.

However, the Act is not all bad news for employers. The new law does not apply to independent contractors. Also, it allows employers to insist that a former employee not solicit other employees, customers or clients or use the employer’s trade secrets. Employers should familiarize themselves with the Act and take a look at how they are using non-compete agreements to ensure compliance with the Act when it becomes effective in mid-January, 2020.

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