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More employers try to regulate employees’ off-Duty behavior

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in Discrimination and Harassment,Employee Benefits Program,Hiring,Human Resources

To help control significant health care cost increases, many employers are trying to regulate employees’ off-duty behavior when they believe that it creates health risks. Although motivated by legitimate economic concerns, are these employers overstepping the boundaries of individual privacy?

For example, employers often argue that smokers and overweight workers have higher health insurance claims than nonsmokers and employees who are not overweight. In response to those higher costs, more employers are instituting bans on hiring smokers, even if they only smoke during off-duty hours. Or they may charge more for health insurance to smokers and obese workers.

But it’s not just smokers and overweight people being targeted. Other groups that may be subject to such “lifestyle” regulation include people with hypertension or high serum cholesterol levels, social drinkers and sports enthusiasts.

Arguably, all daily activities carry some health risks—from smoking to participating in extreme sports to simply walking down the street. That raises the question: Which category of employees will be the next to pay higher health premiums or have their lifestyle choices affect their employment relationship?

Do employers have free rein to monitor and make decisions based on the off-duty conduct of their employees? Some states have “lifestyle” statutes that prohibit them from doing so. Pennsylvania doesn’t have such a law, so Pennsylvania employers have more freedom to take action based on off-duty conduct.

That is particularly true when there is a connection between employees’ personal habits and their workplace effectiveness. In addition, employers may be justified in investigating employees’ off-premises behavior if they have reason to suspect workplace misconduct or violations of workplace rules.

Disability discrimination?

These employer practices raise privacy concerns, and also could increase the odds that a smoker or obese employee who is treated adversely might have a viable claim for disability or perceived disability discrimination.

At the federal level, the ADA prohibits employment discrimination against people with “any physical or mental impairment that substantially limits one or more of an individual’s major life activities.” Also protected are people who are “regarded as having such an impairment.” A smoker who is fired for smoking could claim that he is addicted to nicotine and that his addiction constitutes a disability. A morbidly obese employee could claim that he is disabled because he is substantially impaired in walking. And an employer that fires an employee because of smoking or obesity could be vulnerable to a claim for disability discrimination.

Wellness programs

Instead of refusing to hire or deciding to discharge employees whose lifestyles result in increased health care costs, some employers are adopting the option of establishing “wellness programs.” Wellness programs provide a means to cut health care costs without interfering with the employment relationship. Although the Health Insurance Portability and Accountability Act of 1996, or HIPAA, generally prohibits employers from discriminating on the basis of an employee’s health condition in determining insurance premiums and contributions, it makes an exception for wellness programs.

Some employers offer discounts to employees who participate in smoking cessation or nutrition programs. To qualify under the wellness program exception, the employer’s program must meet certain specified requirements.

Among those is the requirement to offer an alternative to those employees who, for medical reasons, cannot meet the program goals. For instance, if a smoker’s physician certifies that she has been unable to stop smoking because of her addiction, the employer must offer a reasonable alternative, such as a smoking cessation program or nicotine patch.

Unintended consequences

Whether legal or not, employers’ efforts to force changes in employees’ personal lifestyles can, at a minimum, lead to an unsatisfied or underperforming work force. It can drive away talented employees who object to such scrutiny of their personal lives.

The issues surrounding the impact of off-duty conduct on employment-related decisions will continue to be debated
as employers struggle to balance the need to run their businesses effectively and economically with the desire to be viewed as a positive place to work.

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