Employers and smokers have been making headlines. Just last week, Whirlpool made the news when it terminated 39 employees after they were caught smoking, despite having signed statements when they were hired swearing that they were non-smokers.

Over the past several years, it has become more and more common for employers to have stopped hiring smokers or to require smokers to pay higher premiums for health insurance. But not everyone agrees with the idea of punishing employees based on health-related factors. Some cite privacy concerns and paternalism as reasons why employers should not become involved in what employees do off the job. And others worry about what will come next. Currently, it is socially acceptable to ostracize smokers. And, in most states, including Delaware, there’s nothing unlawful about it.

But what about other health factors, like obesity? Will employers next target overweight and obese employees with higher health care premiums? Will businesses refuse to hire applicants who are over a certain body mass index (BMI)?

Some employers, like Westgate Resorts, a vacation-properties company based in Orlando, Florida, are trying to push employees into healthy lifestyles, which includes reducing obestity. At Westgate, employees aren’t penalized to lose weight but those who do are rewarded with a variety of incentives. Michigan is the only state, in addition to the District of Columbia, to prohibit discrimination based on weight. But, in other states like Delaware, where obesity is not a protected class, there would be little legal risk to implementing a weight-reduction policy. Of course, as my mother would say, “Just because you can, doesn’t mean you should.”

Employers should consider non-legal implications of such a policy. For example, how to define “obese.” If BMI is the only determining factor, you might not have many employees–more than two-thirds of Americans qualify under this definition. Or what about the woman who gained 60 lbs during pregnancy and isn’t in a real rush to get lose it right away? And how do you handle an employee who states that his obesity is related to another medical condition. This would sound the alarms of both HIPPA and the Americans With Disabilities Act (ADA). And would gastric bypass or other bariatric surgeries be pushed on employees as a “solution” to weight struggles? How will they regulate weight on a more organic level?

For example, will there be a ban on the sale of Girl Scout cookies?

That announcement would make headlines, for sure.

[Not] Hiring & Firing Smokers

Of the four posts in this series on Smokers & the Workplace, the common action we have seen Delaware employers take is simply not hiring applicants who smoke. Many who implement this type of policy permit current employees to be grandfathered into the new program and do not require them to quit smoking as a condition of continued employment. But that, also, is a viable alternative.

Weyco Inc. stopped hiring smokers in 2003 and prohibited smoking anywhere on company property in 2004. Then, citing evidence on how smokers drive up its health-care insurance costs, Weyco informed its 200 employees that smokers would have fifteen months, until January 1, 2005, to quit smoking. If they didn’t (or couldn’t), they would lose their jobs. Four employees left rather than be tested for the presence of nicotine in their system.

Since Delaware, like Michigan, is one of the states without a “smokers’ rights” law, an applicant who is not hired or an employee who is terminated for smoking would have to look to other statutes for protection. The most likely law would be the Americans with Disabilities Act (”ADA”).

While no Delaware court has addressed the issue, smokers have had little success in other jurisdictions using the ADA to attack their termination. Under the ADA, an employee must show that they have an impairment that substantially limits a “major life activity” like walking, talking, speaking, breathing, etc. While a smoker who develops cancer or emphysema or heart disease from smoking might be protected under the ADA because of the symptoms of those diseases, it is unlikely that smoking alone will be sufficient to invoke ADA protection. As a result, a Michigan state court ruled that an employee’s “addiction to nicotine” was not a disability because it did not substantially limit any major life activity.

Indeed, the U.S. Supreme Court refused to hear a case involving smokers who were rejected from jobs because they had used tobacco within the last year. That refusal let stand a Florida state court ruling that the rejections were lawful because they were based on evidence concerning worker productivity, absenteeism, and public health objectives.

Conclusion
It is unlikely that this hot issue will be tamped out. It pits the right of individuals to engage in a lawful activity off the job against an employer’s right to hire who it wants. In the absence of a smokers’ rights bill in Delaware, it seems that the employer’s rights will prevail in most instances.

Other Posts on Smoking in the Workplace:

A Whirlpool of Excitement about Rights of Employees Who Smoke

Delaware Employers & Smoking Employees (Part 1) Smoking Breaks

Delaware Employers & Smoking Employees (Part 2) Charging Smokers Higher Health Care Premiums

Delaware Employers & Employees Who Smoke (Part 3) Employee Incentive Programs Targeted to Smokers

Are Today’s Wellness Programs Running Out of Steam?

DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.

The Society for Human Resource Management (SHRM), having come under attack by nonprofits such as The Epilepsy Foundation for its opposition to the ADA Restoration Act, has issued a statement explaining its position. In its statement, SHRM says that it supports the purpose of the ADA but is concerned that the proposed bills would expand the definition of “disability” so much that it would cover people with temporary, minor physical or mental impairments like headaches, skin irritations and sprained ankles.

Good point. Having to “reasonably accommodate” people with temporary mental or physical impairments does not seem to be what the ADA was ever intended to do.

SHRM is also worried about the provision that would shift the burden to employers to prove that an individual with a disability was not qualified for a position. Currently, the employee must prove that he or she is an “otherwise qualified individual with a disability.” SHRM says the proposed provision would hinder rather than help efforts to employ more individuals with disabilities (the SHRM statement does not explain why, however). Clearly, it is a benefit to employers not to bear the burden of proof on any legal issue.

An article in the latest issue of the CCH Workweek publication caught my attention. The article mentioned the “ADA Restoration Act” (H.R. 3195/S.1881). The Restoration Act of 2007 was introduced last July and currently is under consideration in Congress. The House Committee on Education and Labor held hearings on the bill on January 28 and 29, 2008.

The Proposed Changes

The Restoration Act would amend the ADA by deleting the current requirement that, to constitute a disability under the ADA, a physical or mental impairment must “substantially limit” the individual’s ability to perform “one or more major life activities.”

The new definition of disability would be a “physical or mental impairment,” period. And, in addition, the individual’s ability to mitigate the effects of a disability through medication or otherwise would become irrelevant.

All in Favor?

Advocates argue that the revision is necessary because the courts have taken such a narrow view of the ADA that its purpose of preventing and remedying disability discrimination has been virtually destroyed.

The U.S. Chamber of Commerce, the U.S. Department of Justice and the Society for Human Resource Management all oppose the bills, according to the American Association of People with Disabilities website.

The ADA Restoration Act may be flying under the radar due the recent changes to the FMLA but don’t underestimate the impact the proposed law could have.

Last Night, I had the honor of presenting the Wallace N. Johnson Citizenship Award to Governor Ruth Ann Minner at the New Castle Chamber of Commerce Annual Dinner. The Governor, through the Delaware Cancer Consortium, has made fighting cancer a priority. As a result, Delaware’s cancer incidence rates are declining at four times the national average. Our death rate is declining at twice the national average.

While we are starting to turn the tide on cancer in Delaware, much remains to be done. Here are a couple of thoughts:

First, screening saves lives…and money. The earlier a cancer is detected, the better chance of survival. In fact, some screens can actually prevent a cancer from occurring. If that’s not enough to encourage screening, how about this? Early detected cancers are cheaper to treat. That’s what you call a win-win-win situation. As a result, employers should take an active role in encouraging their employees to get all appropriate cancer screenings. Have you thought about a floating screening day, so that employees can take off work to get a screen without losing pay?

Second, cancer happens. If your workplace hasn’t been touched by cancer yet, it will be. And, 80 percent of cancer survivors return to the workplace during or after treatment. Why not think about and plan for it now? Of course, you will have to meet your obligations under the FMLA and ADA, but there is so much more you can do. It all starts with talking with the employee with cancer. You should first discuss how much information they want to share with co-workers. Some employee will want to keep the diagnosis quiet while others will want to know everything they are going through with their co-workers. Next you can talk about what help do they need? Every employee will have different needs, but most will need some kind of help. For example, one may need meals cooked for her family. Another might need someone to watch his kids so that he can get treatment or just go to a movie. A human resources professional can help by organizing the workforce to meet an employee’s needs.

Third, knowledge is power. Most cancers are preventable. An employer can educate its workforce on simple ways to lower cancer risks like quitting smoking, exercising, using sun screen and eating healthy. Numerous non-profits, like the American Cancer Society, offer lunch time programs to provide such information.