Volume 40,   Issue 8                                  August  2005

LegalEase

No More Cigarettes and Cheeseburgers
Get Healthy or You’re Fired—Maybe
 

by David Barron

Rising healthcare costs have caught the attention of employers across the country and caused them to look for innovative ways to cut costs. To avoid unpopular cuts to benefits, employers have turned to policing employee lifestyles in an effort to reduce healthcare costs. So far, the prime targets have been smokers and those who are overweight. 

Smoking Under Fire
Recently, Michigan-based Weyco grabbed headlines with its “zero-tolerance” smoking policy. Not only would the company no longer hire smokers, but also existing employees who failed random nicotine tests would be handed pink slips. Not surprisingly, at least 20 workers took the company up on paid assistance to quit smoking, and kicked the habit to keep their jobs. Others were not so lucky, and four women were fired in December 2004.

Weyco is not alone. Nebraska-based Union Pacific stopped hiring smokers in several states last year, including Texas and Arkansas. Alaska Airlines requires applicants to pass a urine test for tobacco before considering them for employment. Many companies, and several state employers, have implemented policies requiring workers to pay extra healthcare premium contributions if they or their dependents admit to using tobacco products. Other companies have taken the carrot, rather than the stick, approach and offered discounts to employees who are tobacco-free.

Employee rights advocates have cried out that such policies are unfair because employees have a right to do what they want on their personal time. From a legal standpoint, however, these arguments have not gotten very far. With the exception of a few tobacco-friendly states, most states have no laws protecting smokers from discrimination or different treatment on the basis of their habit. Unlike drug and alcohol addiction, which can, in some cases, be considered an illness or even disability, courts have not recognized addiction to tobacco as a medical condition covered under various federal and state laws governing the workplace.

Overweight Workers Next?
Smokers are not the only ones to find themselves on the firing line from companies looking to reduce healthcare costs. Overweight workers are under increasing pressure from their employers to get in shape. Weyco, for example, went so far as to bring in an eating disorder therapist to speak to workers, provide eating coaches, create a point system for employees to earn health-related bonuses and to offer vouchers for health club memberships. Although controversial, some argue that such policies are simply common sense. For example, why should the employer pay for open-heart surgery, but not pay for exercise programs that could help employees avoid a costly medical crisis? On the other hand, some employees cringe at the notion of their boss dictating what lifestyle choices are acceptable, and those that are not.

The legalities of penalizing employees because they are overweight is a much thornier issue than for smokers. Obesity can be a disability under the Americans With Disabilities Act (ADA), protecting employees from discrimination. In many cases, obesity can be linked to other medical conditions such as diabetes, which would also warrant protection under federal and state laws. For this reason, most companies delving into this controversial area have chosen the carrot approach, rather than the stick, to encourage employees to maintain a healthy lifestyle. 

Undoubtedly, the trend is for employers to be more creative with healthcare plans, with enticements and rewards for healthy behavior, and built in penalties for employees who make poor health decisions. The legal impact for such actions has yet to be seen, but employers who wade out into this uncharted water should be sure to seek legal guidance before doing so. 

The Author:
David L. Barron is an attorney at Epstein Becker Green Wickliff & Hall P.C. based in Houston. 


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