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EU employers now have a greater incentive to promote employee fitness
Ireland recently celebrated its first National Workplace Wellness Day, at a time when employers in Europe are increasingly concerned about obesity not only as a health problem but as a basis for discrimination lawsuits.
The World Health Organization (WHO) reports that obesity has tripled in many countries of the WHO European Region since the 1980s.
In Ireland, studies have found that 2 out of 3 adults are overweight or obese. The country’s March 27 well-being initiative was organized by the Irish Nutrition and Health Foundation and supported by Ibec, the Irish Business and Employers Confederation. Companies of all sizes participated, including Aramark, Bank of Ireland and Teleflex. These employers hosted events and promotions and highlighted existing wellness initiatives available in the workplace.
Other European countries may want to follow Ireland’s lead in encouraging employers to promote employee health and fitness. That’s because late last year, the Court of Justice of the European Union (EJC) ruled that obesity can be considered a disability in cases where it “hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.”
The casewas brought by a Danish court seeking guidance over a complaint of unfair dismissal brought by a child care worker who had been fired by a local authority. The worker, Karsten Kaltoft, argued that his obesity was one of the reasons for his dismissal, which amounted to unlawful discrimination.
The EU’s Employment Equality Framework Directive outlaws discrimination in employment on the grounds of disability, age, religion or belief, and sexual orientation, but it does not define the term “disability.”
The EU court found that obese people could in some instances be considered disabled, but the ruling did not go so far as labeling obesity itself as a condition that should receive protection under the employment equality framework directive. The laws of the Luxembourg-based EJC are binding throughout EU member states.
“It would have been more of a concern if the EU court had found free-standing grounds” for discrimination, said Naomi Feinstein, an employment attorney with the London-based law firm Greenberg Traurig Maher LLP. “That hasn’t happened. In a sense, it’s positive for employers.”
Kaltoft’s supporters “were looking for a wider definition,” Feinstein said. “They wanted obesity itself to be [a condition receiving protection from] discrimination. The European Court said no, that is not how it works.
“The test is, you look at a comparison to your peers. ‘This is how everybody else does the job; are you hindered?’ ” she said. “You might have two obese people and one has protection but the other doesn’t. It’s not just how much they weigh, but how fit they are.”
She added that the extent to which an individual may have contributed to the onset of his or her disability “is not the point.”
The EJC did not express an opinion about whether Kaltoft’s obesity did in fact fall within the definition of disability. “Now the Danish court will look at the case and decide on the facts of that case whether he has a valid claim or not,” Feinstein said.
Now, each country in the European Union will need to re-examine its definition of disability, Feinstein said. “It’s different in different jurisdictions. Some are more restrictive, some are less so.
“In the U.K., we had a case in 2013 that said obesity can be, in certain circumstances, a disability,” Feinstein said. “The impairment is based on normal day-to-day activities. You only have to show that you are disadvantaged, that you can’t walk or carry” a normal amount. “It’s not what is required of you on the job.”
Overall, “it’s obvious that obesity is increasing. It’s going to be a minefield for employers as that increases, particularly because you can’t tell on the face of it whether a person is disabled. It’s tricky,” she said. Companies should “understand this is the way the law is going and not just say, ‘This person does not have any medical condition, is just overweight, so we don’t have to worry about it.’ ”
Employers are advised to take the following actions:
• Make reasonable accommodations. Companies first need to look at reasonable adjustments, Feinstein said, and “take practical steps to avoid any disadvantage.” For example, employees “should have a chair that fits their size” and other accommodations “so they can get on with their job.”
• Promote fitness. The main focus, Feinstein said, should be on encouraging workers to stay fit and healthy. In Ireland, for instance, a study commissioned by the Nutrition and Health Foundation to coincide with the nation’s Workplace Wellness Day found that only one-third of Irish workers said they get the amount of weekly exercise recommended for a healthy lifestyle, the Irish Times reported. In addition, 4 out of 10 office workers said they were not physically active at all during the workday.
• Educate the workforce. Companies also need to educate managers and employees on discrimination and harassment. That may take some time, Feinstein said. In the U.K., employees were slow to take age discrimination seriously: “It was common to have jokes and banter about age. It will be the same way with obesity” until people are better educated, she predicted.
Stephenie Overman is a freelance writer based in the Washington, D.C., area.
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