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.

Employee Incentive Programs Targeted to Smokers

In Part 2 of this series of posts, we talked about employers who charge higher health care premiums to employees who smoke. These types of programs are commonly lumped together under the broader term of “Wellness Programs.”

But, in fairness, a true Wellness Program involves more than a financial penalty. The modern workforce expects more rewards than punishments from a wellness program. And most employers have answered that call to action by using positive reinforcement strategies–either alone or in conjunction with higher premiums.

Employers may offer special discounts, rebates, and incentives in return for employees’ adherence to certain wellness initiatives, such as smoking cessation. In order to offer these benefits to non-smokers, employers must comply with additional HIPAA regulations. The incentive program must be reasonably structured to promote health; the rewards must be proportionate to the employer’s gain; and the incentives must be strictly based on the employees’ compliance with the program.

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

Are Today’s Wellness Programs Running Out of Steam?

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

Charging Smokers Higher Health Care Premiums.

It seems settled that smoking poses a substantial health threat to those who smoke. The federal Centers for Disease Control and Prevention lists smoking as the leading cause of preventable death in the country, resulting in 400,000 deaths a year. The risk of dying from lung cancer is more than 22 times higher among men who smoke and about 12 times higher among women who smoke compared with nonsmokers. Cigarette smokers are 2–4 times more likely to develop coronary heart disease than nonsmoker.

Of course, smokers’ health problems show up in medical expenses. Men who smoke incur $15,800 and women who smoke incur $17,500 in additional lifetime medical expenses. These additional costs inevitably affect an employer’s health care costs. As a result, employers across the country are now attempting to shift some of these additional costs back to smokers. Some are charging smokers a higher co-pay for their health insurance benefits. Is this practice legal in Delaware? The answer is probably yes.

Currently, approximately thirty states, including New Jersey, have implemented some form of “lifestyle discrimination” statutes. These statutes make it illegal to discriminate on the basis of legal activities. More specifically, some states have “Smoker’s Rights” statutes which prohibit employers from discriminating against smokers in the workforce. Under these statutes, employers may not terminate employees because they are smokers or refuse to hire applicants who smoke. Some of these laws do permit employers, however, to charge higher health care premiums to employees who smoke. Delaware does not have any such law.

While no Delaware law prohibits employers from charging smokers higher health insurance premiums, HIPAA regulations should be consulted before beginning to impose such a surcharge. HIPAA prohibits employers who offer health insurance from charging an employee a higher premium than required of a similarly situated employee, on the basis of any health-related factor unless that surcharge is based on participation in a “bona fide wellness program.”

Wellness programs vary widely, and the features of such programs will determine whether they are subject to the HIPPA regulations. In order to lawfully implement a wellness program, employers should ensure that the reward is limited to a specified percentage (e.g. 10-20% of the cost of contributions for the employee’s health care); the program is available to all similarly situated individuals and offers written notice of an alternative for employees with physical limitations to meeting the program’s standards (e.g., by attending a smoking cessation program).

Consider the following example. An employer circulates a form to all employees to sign, which would certify that they have not used tobacco products in the past twelve months. Individuals who do not complete the form are assessed a surcharge equal to 20% of the total cost of the employee’s coverage. Employees who are unable to meet the standard due to a medical condition (addiction to nicotine) are not assessed the surcharge so long as they participate in a smoking cessation program. This is an example of a bona fide wellness program that satisfies HIPPA’s non-discrimination regulations.

The Department of Labor has a helpful online checklist employers can use to determine whether their wellness program is HIPPA-compliant. The link is below.

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

Are Today’s Wellness Programs Running Out of Steam?

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

Smoking Breaks

YCST Partner William W. Bowser posted earlier about the controversy over employees who smoke at Whirlpool, where 38 employees have been suspended after caught smoking. We often get questions from Delaware employers about what they can and cannot do to respond to the various effects of employees who smoke.

In this series of posts, we’ll address some of the most common questions Delaware businesses have about smokers’ rights.

Smoking Breaks

The most often asked question is whether an employer has to facilitate a smoker’s habit by giving smoking breaks. The answer is no. There is no state or federal law that requires smoking breaks.

Delaware employers must, however, provide most employees with a meal break of at least 30 consecutive minutes if the employee is scheduled to work seven-and-one-half or more hours per day. Meal breaks must be given sometime after the first two hours of work and before the last two hours of work in a workday. Of course, smokers could use this meal break to smoke.

If an employer chooses to allow its employees to take smoking breaks, it probably has to pay them for the time. According to an opinion letter issued by the Wage and Hour Division of the U.S. Department of Labor, short smoke breaks are to be included in the calculation of an employee’s “hours worked.” Specifically, smoke breaks of 3-4 minutes at a time, the total of which do not exceed 15 minutes a day, may not be excluded from “hours worked” under the Fair Labor Standards Act.

Thus, the ability to smoke during work hours is largely under an employer’s control. Smoking breaks aren’t required; but, if they are allowed, the employees must be compensated for that time.

Other posts on Smoking in the Workplace:

Whirlpool of Excitement About Employees Who Smoke

Employers who charge higher health premiums to employees who smoker has been a heated issue for several years. The trend first took the national spotlight in 2003 when Weyco, Inc. stopped hiring smokers and gave current employees 1 year to quit [smoking] or be fired.

The issue of charging smokers more for health care has flared up again this week when it was reported that Whirlpool has suspended 38 smokers who claimed they were non-smokers to get a lower health care premium. According to press reports, the workers were seen smoking or chewing tobacco at the company’s smoking huts even though they signed paperwork claiming they did not use tobacco.

Whirlpool charges smokers an additional $500 per year in health premiums. According to a 2007 survey of employer-sponsored health plans by consulting firm Mercer, 16 percent of large employers vary employee premiums based on smoking status. Among small and midsize employers, 5 percent vary premiums.

Whirlpool, like most employers, uses an honor system requesting employees to honestly fill out paperwork regarding their smoking status. It remains to be seen as this case will lead to mandatory nicotine testing as at least one article has suggested.

Employee productivity, recruitment, and retention are issues that concern every employer. Recently, employers have begun implementing new and different forms of fringe benefits as motivational tools. One such benefit is the employer-based health clinic, as discussed at The Blog that Ate Manhattan. These clinics are a spinoff of Wellness Programs that employers have been implementing for the last several years. Recently, there was talk about the low long-term success rates of employer-instituted wellness programs.

Actually, this is a not-so-new idea, as thirty years ago many big employers offered on-site primary health care to employees. Facing ever-increasing health insurance premiums, many employers are once again offering in-house primary care facilities to avoid the cost of outside physicians. Many offer not only medical examinations but also in-house pharmacies. According to this New York Times article, a clinic that serves 1,000 employees can save $1.5 to $2 million a year.

And, according to the CCH Workweek newsletter, employees spend a lot of work time dealing with their personal legal issues, so some employers have begun offering pre-paid legal services plans to their benefit package.

Finally, some employers who are interested in recruiting, retaining and maximizing the productivity of employees who have young children have been sponsoring on-site or near-site child care as a benefit of employment. There are many options available when considering implementing such a program. A 2005 study by Bowdoin economists showed that employer-sponsored child care can even be profitable.

[Editor’s Note: Some might argue that these benefits offer convenience–at a price. Programs that further meld the worlds of work and non-working time can be seen by some employees as an invasion of privacy and can raise concerns about the effect of off-duty conduct on an employee’s career.]

Our friends at H.R. Hero were nice enough to select one of my articles for HR Line, their national e-zine. The e-zine is great . . . except that you can’t see it without a subscription. Don’t worry, I’m posting a copy of the original article below.