The coverage of obese and overweight workers under the Americans with Disabilities Act has long been a subject of contention between the employer community and employee advocates.

Courts, including the U.S. Court of Appeals for the Sixth Circuit, typically took the limited view that obesity could qualify as a physical impairment under the ADA--and as a covered "disability" if the condition substantially limited the employee in the performance of a major life activity. However, that was only if the employee was morbidly obese and the condition was caused by a physiological disorder.

The Equal Employment Opportunity Commission, in its Compliance Manual, took the position that "severe obesity," which it defined as a body weight more than 100 percent over the norm, constituted an impairment and thus potentially a disability.

The ADA Amendments Act was enacted in 2008 for the express purpose of broadening the view of what is considered a "disability" under federal law. That purpose logically extends to weight-related impairments such as obesity, and at least one commentator has argued that the EEOC subsequently broadened its position on obesity as an ADA disability.

This June, when the American Medical Association announced that it was changing its classification of obesity to the more serious "disease" category from the lesser "medical condition" class, there was some thought that employees may have gained even broader legal protections against obesity-related discrimination. The sense was that, with the AMA's reclassification, courts now might be more inclined to recognize any level of obesity as an impairment (and potentially a disability) rather than imposing a stricter standard called for by the amended ADA.

It was also thought that the AMA's reclassification of obesity might prompt the EEOC to reexamine its position on obesity as a disability under federal law.

But in a Sept. 11 interview with Bloomberg BNA, EEOC Commissioner Chai Feldblum revealed that the commission currently has no plans to revisit the issue. The EEOC's enforcement approach is set forth in its 2012-2016 Strategic Enforcement Plan. "As far as I know, there are no efforts to change or modify that plan," she said.

Feldblum's remarks may have been welcome news to the employer community (and unwelcome news to employee advocates). However, with Centers for Disease Control and Prevention statistics showing that one-third of U.S. adults are obese, and that another one-third are overweight (and potential candidates for regarded-as obese/disabled claims), employers would do well to get and remain on top of this emerging issue. Moreover, time and events may lead the EEOC to reconsider whether federal enforcement action is needed to combat what may be a growing problem of weight-related discrimination and harassment in the workplace.