Eat Your Veggies

If some waste industry employers have their way, you'll have to pay to puff,. At other firms, you may not have a choice: if you smoke, you're fired.

More and more, waste companies are insisting that employees have healthy lifestyles. Ignoring the policy can cost a worker cash or even his or her job.

Wellness programs typically can require both on-the-job and off-work smoking bans, cholesterol checks, weight control and exercise regimens. Employers offer both carrots and sticks to promote company health goals, docking pay for no-shows at health screenings or doling out cash to workers who, sometimes literally, play ball. Some companies flatly reject job applicants or, after issuing a warning, dismiss employees who smoke.

Citing two federal laws — the federal Health Insurance Portability and Accountability Act, which bans different rates for health coverage based on wellness, and the Americans With Disabilities Act (ADA), which forbids asking probing health questions — employment law experts predict a slew of discrimination and privacy lawsuits challenging these policies.

“I think this is a huge untapped area and a litigation minefield,” Ellen Sampson, a Minneapolis labor attorney, told The National Law Journal. “When you start asking people about weight, diabetes, mental health issues or arthritis … you have to ask yourself, ‘Are you moving into areas that are protected under the ADA?’”

Indeed, legal challenges to mandatory health programs have been underway for years. One of the first cases to deal with such measures involved subjecting Taylor, Mich., firefighters to cholesterol screening via mandatory blood draws. A Michigan federal court ruled that the requirement was unconstitutional. [Anderson v. City of Taylor, No. 04-74345, E.D.Mich., Aug. 11, 2005.]

Just about everybody agrees that health care costs are skyrocketing. But, here's the question: Assuming an appreciable reduction in how much an employer must spend on health care, is mandating a healthy lifestyle for employees worth the risk of litigation?

Even if employers can dodge the constitutional argument that foiled Taylor, Mich., they still face laws in more than half the states — including New York, Illinois and Colorado — that ban retaliation against workers for their non-workplace practices and habits. Presumably elsewhere, employers could charge smokers, or obese or diabetic workers, higher health insurance premiums. Laws vary from place to place.

One of the issues that may take years to resolve — either through the courts or otherwise — is whether an employer can only reward or sanction a worker based on his or her conscious choices. In other words, does an employee get a pass when his or her condition stems from genetic or biological factors?

Ultimately, a health improvement program firmly linked to job performance will be easier to defend.