More to Regulate Employees’ Off-Duty Behavior

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<strong>Philadelphia &mdash; Jan. 29</strong><br />In an effort to control the significant rise in their health care costs in recent years, many employers are trying to regulate the off-duty behavior of their employees when they believe it creates health risks. Although motivated by legitimate economic concerns, these employers may be overstepping the boundaries of individual privacy, according to Pepper Hamilton, a multi-practice law firm.<br /><br />&ldquo;For example, more employers are contending that the health insurance claims of smokers and overweight workers are higher than those for nonsmokers and nonoverweight employees. In response to these higher costs, more employers are instituting bans on hiring smokers, even if they only smoke during off-duty hours and/or charging more for health insurance to smokers, overweight workers and other categories of employees,&rdquo; said Susan Lessack, a Pepper Hamilton partner, who concentrates her practice in employment counseling and employment litigation.<br /><br />Although smokers and overweight individuals are the two groups most often being targeted, they are not alone. Other groups that may be subject to such &ldquo;lifestyle&rdquo; regulations include people with hypertension or high serum cholesterol levels, social drinkers and sports enthusiasts.<br /><br />&ldquo;Arguably, there are health risks associated with all daily activities &mdash; from smoking to participating in extreme sports to simply walking down the street. That begs the question of which categories of employees will be the next to be charged higher health premiums or to otherwise have their employment affected adversely by their lifestyle choices,&rdquo; asked Lessack.<br /><br />Do employers have free reign to monitor and make decisions based on the off-duty conduct of their employees? &ldquo;If they are in one of the states that have a &lsquo;lifestyle&rsquo; statute, they may be prohibited from doing so. In a state without a lifestyle statute, employers have more freedom to take action based on off-duty conduct. This is particularly true where employers have job-related reasons for their actions, such as when there is a connection between employees&rsquo; personal habits and their workplace effectiveness,&rdquo; said Lessack.<br /><strong><br />Disability discrimination</strong><br />In addition to the privacy concerns implicated by these practices, the risk exists that smokers or obese employees who are treated adversely might have viable claims for disabilities or perceived disability discrimination. At the federal level, the Americans with Disabilities Act (ADA) prohibits employment discrimination against people with &ldquo;any physical or mental impairment that substantially limits one or more of an individual&rsquo;s major life activities&rdquo; and also people who are &ldquo;regarded as having such an impairment.&rdquo;<br /> <br />Lessack said smokers who are fired for smoking could claim they are addicted to nicotine and that their addictions constitute disabilities. Or morbidly obese employees could claim they are disabled because they are substantially impaired in walking. Employers who fire workers because they smoke or are obese could be vulnerable to claims for disability discrimination. <br /><strong><br />Other discrimination claims</strong><br />&ldquo;In addition to potential disability discrimination claims, employees who are subjected to adverse actions because of their off-duty conduct could argue discrimination on some other protected basis (race, gender or age) if employers do not act consistently. For example, if an employer declines to hire a male employee who smokes, but hires a female employee who does, it becomes difficult for the employer to maintain that its decision was based on a legitimate business reason rather than on gender,&rdquo; said Lessack.<br /><strong><br />Wellness programs</strong><br />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 &ldquo;wellness programs,&rdquo; said Lessack. Wellness programs provide a means to cut health care costs without interfering with employees&rsquo; employment relationship. Although the Health Insurance Portability and Accountability Act of 1996 (HIPAA) generally prohibits employers from discriminating on the basis of an employee&rsquo;s health condition in determining benefit premiums and contributions, it makes an exception for &ldquo;wellness programs.&rdquo; <br /><br />Some employers have imposed higher health insurance premiums on smokers and overweight employees based on the view that they incur higher health care costs and that requiring them to pay a greater portion of those costs is simply a fair distribution of their expenses. Another approach offers discounts to employees who participate in smoking cessation or &ldquo;healthy eating&rdquo; programs. To qualify under the wellness program exception, an employer&rsquo;s program must meet certain specified requirements. <br /><br />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&rsquo;s physician certifies that an employee has been unable to stop smoking because of his or her addiction to nicotine, the employer must offer a reasonable alternative, such as a smoking cessation program or nicotine patch.<br /><br />&ldquo;Whether legal or not, employers&rsquo; efforts to affect changes in employees&rsquo; personal lifestyles can, at a minimum, lead to an unhappy or underperforming workforce, and to the loss of talented employees who are uncomfortable with an employer&rsquo;s scrutiny of their personal lives,&rdquo; said Lessack. &ldquo;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.&rdquo;<br />

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