Can boss insist on healthy habits?

By Randy Dotinga, Correspondent of The Christian Science MonitorWed Jan 11, 3:00 AM ET

A year ago, the Weyco medical benefits firm in Michigan made news
nationwide by sacking employees who refused to try to quit smoking.

But that was just the beginning. Now, the company is working even harder to force its workers to take better care of themselves.

In 2006, Weyco employees who refuse to take mandated medical tests
and physical examinations will see their monthly health insurance
premiums jump by $65. By next year, their annual insurance bills will
grow by more than $1,000 if they still fail to follow instructions.

“The cost of healthcare is frustrating everybody, and we believe at
Weyco that we have to heal ourselves,” says Howard Weyers, company
president and founder. “We think it’s vital.”

But at what price? Should bosses like Mr. Weyers worry about whether
workers are getting annual dental exams, eating healthy, or jogging
regularly? Or should employees have a basic right to live their
personal lives without interference?

These questions are gaining resonance as more American companies try to convince employees to watch their health.

programsSmokers, not surprisingly, are often the targets, with some
companies going as far as testing their workers for tobacco use. In
addition, some employees are being told to shape up or pay up,
including those who are overweight, avoid exercise, have high blood
pressure or high cholesterol.

“A lot of employers are wrestling with this internally,” says Glenn Patton, an employment attorney in Atlanta.

In some cases, bosses are telling workers to take part in preventive
“wellness” programs – a nutrition class, for example – or face higher
premiums.

“You can’t require someone to get better … or lose weight,” says
Mila Kofman, assistant research professor at Georgetown University
Health Policy Institute in Washington, D.C. “But [employers] can
require you to participate in [a health program].”

At Blue Cross/Blue Shield of North Carolina, for example, company
employees with health conditions such as obesity will automatically get
socked with higher insurance premiums – as much as $480 a year – unless
they agree to take part in wellness programs. The higher premiums began
last year for the company’s own employees; this year, employers who
contract with Blue Cross/Blue Shield of North Carolina for insurance
can choose to impose the higher fees on their workers, too.

“We give people an alternative to not pay the higher rates if they
work on their problems,” says executive medical director Dr. Don
Bradley, who says more than half of his company’s employees are
overweight. “Folks respond far better to carrots than they do to
sticks, so the secret here is to keep this as an incentive rather than
a punishment.”

The approach makes sense for employers, says Lisa Horn, manager of
healthcare at the Society for Human Resource Management in Alexandria,
Va., which advises personnel managers. “They’re really trying to
improve the health of their employees overall, and not just reduce
costs for the employer, but also for employees,” Ms. Horn says. “It
certainly seems like their intentions are in the right place.”

An invasion of privacy?Workers’ rights groups don’t agree. They’re
appalled by the pushy-employer trend, which they have seen growing over
the past couple of years.

“This isn’t about smokers,” says Jeremy Gruber, legal director of
the National Workrights Institute in Princeton, N.J. “This is about all
of us being able to go about our private lives without employers making
decisions based on what we do off the job.”

Some observers worry that employers will let their interest in
health get out of hand. “My biggest fear,” Ms. Kofman says, “is that
… companies will try to use these wellness programs as a subterfuge
to discriminate against unhealthy people.”

Currently, federal law forbids employers from discriminating against
workers if genetic testing suggests they’re susceptible to certain
diseases. But could employers refuse to hire applicants because they
smell like smoke?

“It’s probably legal,” Kofman says.

Some lawmakers want to change that. In Michigan, an outcry against the
firing of smokers at Weyco sparked a state senator to push for a law
that would prevent employers from firing workers for engaging in legal
activities outside the workplace. About 30 other states have similar
laws protecting the private lives of employees, although their
protections differ.

Mr. Weyers, the Weyco president, doesn’t have regrets. “I tell
people that this was not a privacy situation, this was a company
policy,” he says. “Employees are adults, and we expect them to make
adult decisions about things like drugs or tobacco. What’s more
important: your job or the use of those things?”

The company was generous enough to give employees 15 months to
make a decision about whether to quit smoking, Weyers adds. Some
workers “decided tobacco was more important, and that’s fine. They can
go someplace else and work.”

Workplaces often lack private-life protectionsThe color of your
eyes, the car you drive, and your weight may all sound like private
matters. But in many states, employers can take those facts – and many
more – into account when they decide whether to hire or fire you.

Some groups are protected on the federal level: Employers can’t
discriminate against workers based on age, gender, race, disability,
national origin, or religion. But unless state law says differently,
all other characteristics are fair game, including your political
leanings and even what you wear outside of work.

In 2004, for example, an Alabama housing insulation company
reportedly fired a woman for sticking a Kerry-Edwards bumper sticker on
her Chevy Lumina. In 2002, Goodwill Industries sacked a man who ran for
mayor of Miami as a member of the Socialist Workers Party. Also that
year, a federal court ruled that the Winn-Dixie grocery chain had the
right to fire a Louisiana employee because he wore women’s clothing off
the job.

These firings didn’t violate the law thanks to “at-will
employment,” a legal concept in 49 states that allows bosses to fire
workers for virtually any reason – or none at all. (Montana is the sole
exception.)

Even a seemingly arcane factor like your weight can come into
play. “To be honest, generally speaking there is no law that prohibits
an employer from saying, ‘You look about 15-20 pounds too heavy, you’re
fired,’ ” says Atlanta employment attorney Glenn Patton.

There are some exceptions. Almost all states protect employees
from being fired for “exercising a right of public policy,” such as
voting, says Camille Olson, an employment attorney in Chicago.
Government employees have special protections, as do many union members
and others with contracts.

As of 2003, 29 states and the District of Columbia forbade
bosses from firing workers for engaging in certain legal off-duty
activities, according to the Society for Human Resource Management.
Tobacco use is the most widely protected activity; four states protect
employees who do anything legal outside the workplace.

Outside those states, workers can still get pink slips for engaging in private activities.

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