Editor’s Note: Safety training and protective measures aren’t one-size-fits-all. They must account not only for the jobs workers do and the hazards they face, but also the unique characteristics of individuals you’re trying to protect. The Insider created this column to explain how a worker’s ethnicity, age, gender, physical build and other personal characteristics affect your safety and compliance obligations.
Canadian workers are getting fat. A recent Statistics Canada study found that the obesity rate among workers has steadily increased, especially for men. How does this trend affect your company and its OHS program? According to this study, young men who are obese were almost four times more likely to be absent from work than young men of normal weight. And male and female obese workers in certain age ranges were more likely to have long-term health problems that reduced their productivity as compared to their normal weight co-workers. Lastly, obese female workers age 35 to54 were significantly more likely to suffer a workplace injury than females of the same age in the normal weight range.
This edition of WORKER PROFILE looks at the unique health and safety issues raised by overweight and obese workers and how to manage these issues without exposing your company to liability.
Defining Our Terms
A person’s body mass index (BMI) is calculated based on the individual’s height and weight. When we use the term “overweight” in this article, we mean someone whose BMI is 25.0 to 29.9 and by “obese” we mean a person whose BMI is 30.0 or higher. (A BMI of 18.5 to 24.9 indicates a healthy weight.)
THE HEALTH & SAFETY ISSUES
Overweight and obese workers face and create the following health and safety issues in the workplace:
Increased absenteeism. There are strong ties between weight and absenteeism. Being overweight or obese is a risk factor for many illnesses, such as type 2 diabetes, cardiovascular disease and some cancers. In addition, overweight or obese workers have a substantially higher prevalence of metabolic, circulatory, musculoskeletal and respiratory disorders. As a result, they’re more likely to take sick days or go out on disability than workers of normal weight. For example, according to a study published in the American Journal on Public Health, obese workers were 1.7 times more likely to experience a high level of absenteeism (that is, seven or more absences due to illness over six months) and 1.6 times more likely to report moderate absenteeism (that is, three to six sick days over six months) than thinner co-workers.
Greater vulnerability to occupational diseases. Overweight and obese workers tend to be more vulnerable to heat stress, heat stroke, musculoskeletal disorders and other occupational diseases.
Ill-fitting PPE and equipment. Studies have shown that body weight is a factor in the effectiveness of respiratory equipment, fall protection and protective clothing. In addition, simply finding PPE to properly fit an overweight or obese worker can be a challenge, although more PPE manufacturers are now making PPE in extra-extra-extra large sizes. Even when XXXL PPE is available, workers may find it uncomfortable and decide not to use it. And by not wearing their PPE, these workers are exposing themselves to the risk of injury.
Higher rate of workplace injuries. Workers who are overweight or obese may be more likely to get hurt on the job. For example, a 2007 study of over 7,000 workers at a large, multi-site aluminum manufacturing company in the US published in the American Journal of Epidemiology found that overweight and obese workers have a significantly higher risk of traumatic injuries from single workplace incidents. Of the 2,221 workers who had suffered traumatic injuries during the period studied, only 28% had BMIs in the normal range. The remaining 72% had BMIs in either the overweight or obese ranges. And the odds of injury for overweight and obese workers increased substantially when the researchers considered only sprains and strains.
Increased workers’ comp claims. According to a 2007 study by researchers from Duke University, the heaviest workers file twice as many workers’ comp claims as their normal weight co-workers. And the most obese workers—those with BMIs of 40 or higher—had 13 times more lost work days due to work-related injuries and the workers’ comp claims for those injuries were seven times higher than claims filed by their normal weight colleagues.
Insider Says: A worker’s weight can impact whether workers’ comp will cover an injury at all. The issue is whether the worker’s injury is work-related or weight-related. For example, if a worker develops osteoarthritis in his knee, is that condition due to his job, which requires him to stand for five hours a day, or the fact that he’s 50 lbs. overweight? Cases involving this issue are very fact-specific.
LEGAL PROTECTIONS
Of course, the OHS laws protect all workers regardless of weight. But overweight and obese workers might be entitled to special protections. These special protections are rooted in two sets of law:
OHS Laws
The first kind of special protection for overweight and obese workers is a psychological one rather than a physical one. OHS laws in only two jurisdictions provide any specific protection for overweight workers. Manitoba and Saskatchewan bar the harassment of workers based on their physical size or weight. Thus, if your company is located in either of these provinces and you hear a worker making “fat jokes” about a co-worker, you must discipline that worker for violating the harassment prohibition. (Note that the remaining 12 jurisdictions—Fed, AB, BC, NB, NL, NT, NS, NU, ON, PEI, QC and YT—either bar harassment without a reference to physical size or weight (ON, QC) or require employers to protect workers from harassment based on the “general duty” clauses their OHS laws.)
Workers’ weight, however, indirectly affects the things the OHS laws say you have to do to protect them. For example, various sections of the OHS laws require employers to determine or comply with the maximum load for equipment such as scaffolding, fall protection, man baskets and the like. For instance, Manitoba’s OHS regulations require an employer to determine the maximum load for scaffolding by considering the “actual weight of the workers using it,” including their tools, materials and equipment. Exceeding that load could endanger workers. And to determine or comply with maximum loads for a piece of equipment, the employer needs to know the weight of the workers who’ll be using that equipment.
Human Rights Laws
The human rights laws bar employers from discriminating against workers on a variety of grounds, including physical disability. Employer must also accommodate disabled workers to the point of undue hardship. The key question: Is obesity considered a disability under the law? The answer is muddled.
Disability. Arguing that obesity is a disability is tough. First, the law in some jurisdictions defines “disability” as a condition caused by bodily injury, birth defect or illness. Thus, in such a jurisdiction, unless a worker’s obesity satisfies this causation requirement, it would not be considered a disability. However, the trend seems to be to define or interpret “disability” broadly and eliminate the causation requirement.
In addition, the Supreme Court of Canada has stated that obesity can be a disability [Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City)]. But the Court made this statement as an aside in a case that involved other disabilities. So although it may influence other courts, technically, they’re not bound to follow it.
Perceived disability. The human rights laws ban discrimination on the basis of not only a disability but also a “perceived” disability. That is, you can’t treat a worker unfavourably and must make accommodations for him because you think he has a disability even if you’re wrong. Thus, if you treat an obese worker differently because you perceive him as disabled by virtue of his weight, you’re likely guilty of discrimination based on a perceived disability.
Obese workers have had more luck arguing that their weight is a perceived disability. For example, the Canadian Human Rights Commission’s website says that although obesity in and of itself isn’t a disability (unless it’s because of a medical condition), it would be considered a perceived disability if an employer treated a worker as disabled because of his weight. And in BC, no worker has won a case arguing obesity is a disability, but several have successfully argued that they were discriminated against because their employers perceived their weight to be a physical disability [See, Rogal v. Dalgliesh].
Insider Says: Although it’s still unclear whether obesity is a disability regardless of its cause, it’s highly unlikely that simply being overweight would be considered a disability.
HANDLING OVERWEIGHT WORKERS
How should employers handle overweight and obese workers? There are several things your company should do:
Provide appropriately-sized PPE. Employers must ensure that workers have and use the PPE appropriate to protect them from the hazards of their job. (For more information on an employer’s duties regarding PPE, see Insider, Vol. 5, Issue 5.) Employers also have a duty to ensure that PPE properly fits workers. For example, Sec. 229(1) of Alberta’s OHS Code, 2009 says that if a worker’s eyes could be injured or irritated in the workplace, the employer must ensure that the worker wears properly fitting eye protection equipment. Thus, if the OHS law in your jurisdiction requires your company to provide PPE for workers, make sure that it provides PPE in sizes appropriate for all workers, including those who are overweight or obese.
Make accommodations. If obesity is considered an actual or perceived disability, the company must accommodate the worker to the point of undue hardship. The question of when accommodations cross the line from reasonable to undue hardship is fact-specific. In addition, the company should consider making similar accommodations to overweight workers, too. For example, reassign an obese worker if a job requires him to regularly walk up and down stairs or stand on his feet for hours on end.
Provide wellness programs. If your company doesn’t already have a wellness program, encourage it to develop one. Wellness programs can help workers improve their overall health by getting them to exercise more, eat better, quit smoking, etc. And if your company already has a wellness program, encourage workers—especially those with weight issues—to participate in it. (For more information on making the business case for wellness programs, see Insider, Vol. 5, Issue 3.)
Conclusion
Ideally, companies should treat all workers the same. But some workers may need more protection than others because of certain vulnerabilities they have. Overweight and obese workers are a good example. Although your company certainly shouldn’t discriminate or unfavourably treat workers with weight problems, it should be sensitive to the particular health and safety issues such workers face and take appropriate steps to address those issues.
SHOW YOUR LAWYER
Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665, May 3, 2000
Rogal v. Dalgliesh, [2000] B.C.H.R.T. 22, March 23, 2000
INSIDER SOURCES
“Association between Body Mass Index and Acute Traumatic Workplace Injury in Hourly Manufacturing Employees,” American Journal of Epidemiology, vol. 166, no. 2.
“Obesity and Workers’ Compensation,” Archives of Internal Medicine, 2007;167:766-773
Obesity on the Job, Statistics Canada, Feb. 20, 2009
“Work, Obesity, and Occupational Safety and Health,” American Journal of Public Health, March 2007, Vol. 97, No. 3
Studies on Obesity in the Workplace
Here are links to some studies on the relationship between obesity and workplace health and safety:
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