Employment: So Much for Personal Habits

By Jonathan On Jul 5, 2017

‘Personal’ Habits Update

District Court Judge: Smoker’s Lawsuit Against The Scotts Company for Employment Discrimination May Proceed on Grounds of Invasion of Privacy

http://tobaccoanalysis.blogspot.com/2008/02/district-court-judge-smokers-lawsuit.html

Michael Siegel, MD, MPH
Professor
Associate Chair of Academics
Social and Behavioral Sciences Department
Boston University School of Public Health

Backlash Against Bosses on Strict Health Rules
By Scott Hensley
October 18, 2007
Most Americans say employers shouldn’t have the right to require that their workers participate in programs to stop smoking or shed pounds, says a poll by The Wall Street Journal Online/Harris Interactive.
More and more companies are adopting stricter wellness policies to keep health-care costs in line. But the moves are meeting resistance.
Sixty-five percent of respondents believe employers shouldn’t have the right to mandate smoking-cessation programs or to fire an someone who is unwilling to quit smoking, the survey results say. Two-thirds say bosses shouldn’t be able to require attendance in weight-loss programs or to fire someone who doesn’t lose weight.
While nearly a third of those polled say it’s OK for employers to require attendance in smoking-cessation or weight-loss programs, few participants in the poll said they believe employers have the right to fire employees for smoking (7%) or for being seriously overweight (4%).
The online survey of 2,267 adults, conducted Oct. 8-10, indicates declining public support for charging higher insurance premiums or out-of-pocket medical costs to people with unhealthy lifestyles. Forty-two percent of U.S. adults think it is unfair to ask people with unhealthy lifestyles to pay higher insurance premiums than people with health lifestyles, compared with 37% who say it is fair. And about a third believe those with unhealthy lifestyles should pay higher deductibles or co-payments for their medical care vs. 46% who disagree.

Can You Pass the Sniff Test?

October 18, 2007
Susan M. Heathfield

Workplace smoking is controversial, even in organizations with a smoke-free workplace policy. The perception of coworkers is that smokers take more breaks than non-smokers. They think smokers especially rack up extra minutes of break walking to the designated smoking area, if there is one.

Coworkers resent the smell of smoke that the smoker brings into an otherwise unpolluted meeting room. They hate the smell that exudes from the smokers’ clothing. And, talking with a coffee-drinking smoker in the morning takes a person of courage.

For these reasons, many workplaces no longer supply a smoking area and prohibit smoking on the workplaces premises. And, who can blame employers? According to Hillary Smith, a writer for MSN Money, some companies such as Weyco, in Okemos, MI fire employees who smoke. Indeed, Weyco now tests spouses and employees with family smokers pay a premium on their insurance of $80.00 a month.

According to a Society for Human Resources Management survey five percent of companies prefer not to hire smokers and one percent will not hire smokers such as Alaska Airlines and U nion Pacific. The same poll said that five percent of employers collect extra health-care insurance premiums from smokers.

I’ll take employers’ preferences one step further. If you are an applicant, who can’t pass the smoking sniff test, and believe me the small spaces in which interviews are usually conducted, will give you away as a smoker, you won’t get the job. Another individual with equivalent skills and experience, all things being fairly equal, will get the nod. Why would any employer want to add to costs and an unpleasant work environment?

Laws Prevent Smoking Discrimination But More Ban Smoking in Public

Thirty-one states have laws that prevent discrimination for smoking against current employees and potential candidates for employment. (Michigan is not one of them.) However, currently, 22 states, the District of Columbia, and Puerto Rico have passed laws that prohibit smoking in almost all public places, workplaces, and even restaurants and bars. According to the American Lung Association: “A 2005 study estimated the total cost of secondhand smoke exposure in the United States at $10 billion annually, $5 billion in direct medical costs, and $5 billion in indirect costs such as lost productivity.

“Workers have been awarded unemployment, disability and worker’s compensation benefits for illness and loss of work due to exposure to secondhand smoke.”

So, smoker’s rights are becoming secondary to the rights of others in the workplace and in public spaces. Increasingly where laws still allow it, employers are choosing not to hire smokers. Smokers are paying higher insurance premiums.

The discrimination against smoking isn’t blatant in hiring in most places; it’s subtle and the hiring manager may not even realize why a candidate has turned him off. But, I lay my bet, smokers are less likely to be hired if they can’t pass the sniff test.

Lawyers to the rescue

September 17, 2007
By Sandy Szwarc

Employers considering offering employee wellness programs and penalizing workers who have “high” health indices will now want to think twice. Attorneys are catching onto the science and raising questions about the discriminatory aspects of these programs and how they violate the rights of employees, especially fat employees.

Companies penalizing employees who are fat or have high health risk numbers have been in the news lately. Purportedly, these wellness initiatives are to encourage employees to change their behaviors to be healthy and save healthcare costs.

As disturbing as this may sound, how many people know that, beginning on July 1st, a new Federal law made this legal? Employees can compensate fat, older and minority people as much as 20% less and discriminate against employees based on health factors — as long as it’s connected with an employee wellness program. This new law was passed so quietly, the public has been left largely in the dark.

As the Associated Press recently reported, many companies were holding off enacting these penalties, pending the finalization of this new law. Now, they report, “employers wary of risking legal problems feel more confident after federal regulations were finalized July 1 covering how wellness programs can comply with nondiscrimination requirements under the Health Insurance Portability and Accountability Act.”
Read More

More than 6,000 U.S. Employers Refuse to Hire Smokers

September 4, 2007
By Michael Siegel
According to a recent article in the Daytona Beach News-Journal, at least 6,000 U.S. employers refuse to hire smokers, and the number may be even higher than that.

The article states that “in recent years a growing number of firms nationwide have decided that allowing employees to smoke only outdoors is not enough. At least 6,000 employers refuse to hire smokers, according to the National Workrights Institute, an affiliate of the American Civil Liberties U nion or ACLU. Jeremy Gruber, a spokesman for the group’s New Jersey affiliate, said the figure is probably higher. ‘That was an old survey,’ Gruber said recently. ‘It has become far more prevalent.'”

The article explains that: “At private companies, economics, not surprisingly, is the driving force behind the growth in anti-smoking regulations, with savings on health care as a primary reason. The Centers for Disease Control and Prevention estimated that it cost the nation $3,383 a year for every smoker. That breaks down to $1,760 in lost productivity and $1,623 in medical bills.”

One such company is Orland Beach, Florida-based The Homac Companies, a designer, manufacturer, and distributor of electrical connectors. If you click on the Careers link looking for a position with the company, you will be greeted by the message “Tobacco Free Candidates Only.” Even if you are just looking for an internship with Homac, you are also greeted by the message “Tobacco Free Candidates Only.”

Homac’s mission is “to be a premier manufacturer and supplier of Electric Power Delivery Connectors and Cable Accessories; we are committed to world class performance as demonstrated by continuous improvement in safety, innovation, quality, cost, flexibility, and customer satisfaction.”

The Rest of the Story

This is a great example of blatant employment discrimination. Whether one smokes or not, or uses smokeless tobacco or not, has no relevance to one’s qualifications for a job making and selling quality electrical connectors and accessories. Can you tell me in what way an employee’s smoking status affects his ability to design, develop, make, distribute, or sell an aluminum bus support bolt circle height adapter or a #4 – 250 AAC bolted aluminum cable?

If anything, this job discrimination makes it more difficult and less likely that Homan will be able to produce quality bolted aluminum cables because they are automatically precluding from potential employment about 20% of the population, which undoubtedly includes some of the most qualified candidates for such a job.

Tobacco use status of an employee also has no relation to the Homan Companies mission. How does whether an employee smokes or not in the privacy of his or her own home affect the company’s mission of being a premier manufacturer and supplier of electric power delivery connectors and cable accessories?

Perhaps I could understand if this were a company whose mission was to provide smoking cessation services to addicted smokers, but how does my smoking status affect my ability to make electrical connectors?

Perhaps more importantly, what right does my employer have to even inquire about my lawful personal behavior in my own home, if it is not directly related either to a bona fide job requirement or to the company’s mission?

One might argue that the employer has the right to ask about my tobacco use in my home because he wants to reduce health care costs and he believes that my health care costs may be higher if I am a smoker. The problem is that if the invasion of my privacy about my own personal lifestyle is justified in order for the employer to reduce his health care costs, then the employer is also perfectly at liberty to ask me about my diet, the number of times I exercise each week, how much I weigh, and various aspects of my sexual behavior (limited only, in some states, by questions related to my sexual orientation).

For example, the company would be perfectly justified in greeting potential job applicants with the message “Fat People Need Not Apply,” “One Sexual Partner Applicants Only,” or “Applicants without Children Under Five Years Old Only.”

My argument here is that not only is this blatant discrimination, but it is an undue invasion of individual privacy. Can you imagine having to fill out a questionnaire about all of your personal health habits, including your diet, physical activity, hours of sun exposure, use of sunscreen, use of seat belts, and sexual behavior before even being allowed to apply for a job?

It’s pretty obvious to me that such a questionnaire would represent an undue, and obnoxious, invasion of privacy. So why then is it not similarly an inappropriate invasion of privacy to ask about my tobacco use history?

The answer is simple: it is an inappropriate invasion of privacy to ask about my tobacco use off-the-job, unless it is directly related either to the job requirements or to the company mission.

The failure of any U.S. anti-smoking groups to speak out against this widespread employment discrimination and invasion of privacy is unfortunate, and it illustrates the “end justifies the means” mentality of the modern anti-smoking movement.

Sure – discriminating against smokers and interfering with their privacy may help to lower smoking rates and save employers money. But it is inappropriate and has no place in public health. Anti-smoking groups should be ashamed of themselves for failing to speak out strongly against this obnoxious practice.

Read more from Michael Siegel

Study: Fat workers cost employers more

April 23, 2007
By CARLA K. JOHNSON, Associated Press Writer

CHICAGO – Overweight workers cost their bosses more in injury claims than their lean colleagues, suggests a study that found the heaviest employees had twice the rate of workers’ compensation claims as their fit co-workers.Obesity experts said they hope the study will convince employers to invest in programs to help fight obesity. One employment attorney warned companies that treating fat workers differently could lead to discrimination complaints.

Duke University researchers also found that the fattest workers had 13 times more lost workdays due to work-related injuries, and their medical claims for those injuries were seven times higher than their fit co-workers.

Overweight workers were more likely to have claims involving injuries to the back, wrist, arm, neck, shoulder, hip, knee and foot than other employees.

The findings were based on eight years of data from 11,728 people employed by Duke and its health system. Researchers found that workers with higher body mass indexes, or BMIs, had higher rates of workers’ compensation claims.

The most obese workers — those with BMIs of 40 or higher — had the highest rates of claims and lost workdays. BMI is a measure of height and weight. A 6-foot, 300-pound person, for example, has a BMI of just over 40.

Study co-author Dr. Truls Ostbye said the findings should encourage employers to sponsor fitness programs.

“There are many promising programs,” Ostbye said. “We’d like to see more research about what is truly effective.”

James Hill, who heads the Center for Human Nutrition at the University of Colorado, said managers will pay attention to the findings because injuries mean more immediate financial losses than the future health-care costs of diabetes and heart disease.

“When you see that claims rates double, I think that’s going to get people’s attention,” Hill said.

But there isn’t enough good information about employer-sponsored programs that work, said John Cawley, an expert in the economics of obesity at Cornell University. Employers don’t know whether paying for nutrition counseling, obesity surgery or anti-obesity drugs through health insurance makes economic sense, he said.

“It’s now apparent to everybody that obesity is a big problem,” Cawley said. “But the research isn’t there to know where to get biggest bang for the buck.”

Cawley noted that BMI does not distinguish muscle from fat and can equate a buff body builder to a couch potato. Although BMI, a measure of height and weight, is used in most obesity research, Cawley’s research has found that blacks are particularly likely to be misclassified as obese by BMI.

New York employment attorney Richard Corenthal cautioned employers not to overreact with discriminatory policies.

“Employers need to be careful not to view this study as a green light to treat obese or overweight workers differently,” Corenthal said.

The study, appearing in Monday’s Archives of Internal Medicine, got funding from the National Institute for Occupational Safety and Health.

Study: Fat Workers Cost Employers More
4/23/07
By CARLA K. JOHNSON, Associated Press Writer
Overweight workers cost their bosses more in injury claims than their lean colleagues, suggests a study that found the heaviest employees had twice the rate of workers’ compensation claims as their fit co-workers.
Obesity experts said they hope the study will convince employers to invest in programs to help fight obesity. One employment attorney warned companies that treating fat workers differently could lead to discrimination complaints.

New Study on Obesity Costs Shows Folly of Smoker-Free Employment Policies

April 25, 2007
By Michael Siegel
According to an Associated Press article published Monday in the Boston Globe, a new study has shown that “fat workers cost employers more.” AP writer Carla K. Johnson writes that: “Overweight workers cost their bosses more in injury claims than their lean colleagues, suggests a study that found the heaviest employees had twice the rate of workers’ compensation claims as their fit co-workers.”

“Duke University researchers also found that the fattest workers had 13 times more lost workdays due to work-related injuries, and their medical claims for those injuries were seven times higher than their fit co-workers. Overweight workers were more likely to have claims involving injuries to the back, wrist, arm, neck, shoulder, hip, knee and foot than other employees. The findings were based on eight years of data from 11,728 people employed by Duke and its health system. Researchers found that workers with higher body mass indexes, or BMIs, had higher rates of workers’ compensation claims. The most obese workers — those with BMIs of 40 or higher — had the highest rates of claims and lost workdays.”

The study was published in the current issue of Archives of Internal Medicine.

Based on these findings, the authors of the study recommended that employers institute fitness programs to help their overweight employees lose weight.

In response to the study: “New York employment attorney Richard Corenthal cautioned employers not to overreact with discriminatory policies. ‘Employers need to be careful not to view this study as a green light to treat obese or overweight workers differently,’ Corenthal said.”

The Rest of the Story

The rest of the story here is not the study itself, but the response to the findings. And the story is not what researchers recommended, but what they did not recommend. You don’t hear anyone suggesting that to save health care and workers compensation money, employers fire fat people or stop hiring them in the first place. It simply isn’t part of the discourse. The suggestion simply does not arise. No public health groups are suggesting – or would suggest – anything of the sort. The response (and an appropriate one) is to recommend fitness or other programs to help employees control their weight.

Not so with an almost identical problem – off-the-job employee smoking. That problem is also costing employers money in terms of health care costs. However, in contrast to the obesity and overweight problem, many anti-smoking groups are supporting the idea of firing smokers or refusing to hire smokers in order for employers to save money. The World Health Organization has gone so far as to institute its own smoker-free employment policy, refusing to consider applications from smokers for any WHO job.

It is time that anti-smoking groups understand that the precise reasoning they are using to support discrimination against smokers in employment also supports discrimination against obese and overweight people. If we are going to support the idea of excluding smokers from employment to save health care costs for employers, then we must also support the idea of excluding fat people from employment.

Another aspect to the rest of the story is the immediate and vigorous way in which the mere possibility of employers discriminating against overweight people is confronted. The article concludes with a caution to employers not to take these findings as a green light to discriminate against overweight job applicants.

Not so with smoker-free employment policies. You generally are not hearing a vigorous response warning employers not to discriminate against smokers. You certainly will not hear such a warning from any U.S. anti-smoking group.

In fact, I might go so far as to say that my greatest disappointment right now as a tobacco control advocate is the failure of any U.S. anti-smoking group to step up and condemn discrimination against smokers in employment. I don’t think that discrimination is something we should be supporting or even condoning in the tobacco control movement. The fact that we are supporting it is a grave disappointment to me, and it makes me quite ashamed to be a tobacco control practitioner and a part of that movement.

Read more from Michael Siegel

Investigation Concerning Termination of Smokers And/Or Charging Smokers Higher Healthcare or Disability Premiums

In 30 states and the District of Columbia, state law makes it illegal for companies to impose smoking bans on their employees when they are off duty. In addition, the federal employee benefits law, ERISA, prevents employers from discriminating against and/or firing employees, here smokers, to interfere with the attainment of any right under a benefit plan, here the right to health benefits.

Recently, a number of companies, including Weyco and The Scotts Company, have instituted policies to terminate smokers, even if those persons do not smoke at work. The reason cited by companies such as Weyco and Scotts, for adoption of these policies is increased healthcare costs. Click here for more examples. Both liberal and conservative civil liberties groups have denounced these policies as an improper invasion of employee’s rights to conduct activities on their off hours.

There is also a trend toward charging smokers more for health insurance. A growing number of employers are requiring employees who use tobacco to pay higher premiums, hoping that will motivate more of them to stop smoking and lower healthcare costs. Among the list of firms reported to have such policies to charge smokers higher premiums include Cardinal Health, J.P. Morgan Chase, Meijer Inc., Gannett Co., American Financial Group Inc., PepsiCo Inc. and Northwest Airlines. Such policies may also violate the federal employee benefits law, ERISA.

Cohen Milstein is currently conducting an investigation as to whether such policies violate ERISA and/or state law. If a violation can be proven, reinstatement as an employee, and reinstatement in the plan or reimbursement of premiums (including back benefits) may be available as equitable relief under ERISA (although the scope of available relief under ERISA remains controversial).

If are a current or former employee of a company with such a policy and fall into one of the following categories, please contact one of the persons listed at the bottom of this page:

1. A smoker currently employed at a company which imposes higher healthcare premiums on smokers than non-smokers;

2. A smoker currently employed at a company which terminates persons who smoke; or;

3. A smoker terminated by a company as a result of a no-smoking policy.

For more information, contact:

R. Joseph Barton, Esq. jbarton@cmht.com
Abby Scott ascott@cmht.com
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W., Suite 500
Washington, D.C. 20005
Telephone: 888-240-0775 or 202-408-4600

So Much for ‘Personal’ Habits

October 15, 2006
By Amy Joyce, Washington Post Staff Writer

Your employer probably hasn’t bugged your apartment to determine if your television viewing is up to par.

But that doesn’t mean that your life outside of work can’t affect your hiring, firing or promotions.

In many states, it is legal to hire, fire or promote based on what a company finds out about you in your nonwork world.

That includes smoking, even during off-work hours.

Weyco Inc., an employee benefits firm in Okemos, Mich., started nicotine testing with its employees last year. It instituted a policy that makes it a firing offense to smoke, even off the premises, outside work hours. It stopped hiring smokers in 2003, and last year it fired several employees who refused to take a nicotine test.

More recently, the company expanded the policy to spouses of its 175 employees. If the spouses test positive for nicotine in monthly tests, the employee must pay an $80 monthly fee until the spouse takes a smoking cessation class and tests nicotine-free. Employees are subject to random tests, a policy that according to Howard Weyers, president of Weyco, has cost “a few people” their job. Employees who come up positive for nicotine in a random test are sent home for a month with no pay. If they test positive a second time, they are fired.

“It’s strictly for prevention, and this is the right thing to do,” Weyers said. “Everybody knows that the use of tobacco will create a medical episode.”

Anita Epolito worked for Weyco for 15 years when she was fired for refusing the test in 2005. “This is about privacy,” she said. “If you failed the blow test, you had to take a urine test. It was so demeaning.”

She thought what the company did was illegal but soon found out that because Michigan is an at-will state, she could be fired for any reason, even for something she did in her off-hours.

However, there is some wrangling about the legality of firing people for off-the-job behavior. In fact, 30 states and the District have statutes that limit an employer’s ability to make decisions about an employee based on off-duty activities, according to Susan K. Lessack, a partner in employment and labor law at Pepper Hamilton LLP. Some statutes apply only to public-sector employees.

“We were surprised that there hasn’t been litigation out of that as far as we know,” Lessack said about people who were fired for smoking. “I think it’s probably legal but subject to challenges from employees.”

Lewis Maltby of the National Workrights Institute calls it “lifestyle discrimination.”

Companies that ban off-hours smoking believe it is in their right to fire employees who smoke because they are increasing company health-care costs. But “it’s a road that leads to somewhere that not all of us are going to like,” Maltby said. “It sounds good when you talk about it in the context of smoking. But how about people who drink, ride motorcycles, sky-dive, have a promiscuous sex life?”

Or use the Internet?

A simple Google search has made uncovering someone’s personal life that much easier. Blogs and pages on social-networking sites such as MySpace are an invitation to your innermost thoughts and private actions.

Brad Karsh, a career consultant and author of “Confessions of a Recruiting Director,” was recently about to interview a young man for an internship. Karsh checked him out on the Web site Facebook, where the potential employee listed among his interests “smokin’ blunts with the homies, shooting caps into whitie.”

“I’m assuming, and 99 percent certain, that he was joking. But what did that say about his judgment?” Karsh said. “And what did that say about someone applying for a job at a company that advises college students about the workplace?”

Karsh did not hire the man.

In a recent survey, 19 percent of workers said they would post their r?sum?s on social networking sites, while a third would remove content from their MySpace, Facebook or Friendster pages if they knew their employers could see it, according to Spherion, a recruitment and staffing agency.

Checking online profiles has become a regular part of the hiring process. Rex Houlihan, founder of NorthStar Express Freight Inc. in Falls Church, didn’t even think of checking potential employees online until a young woman at his firm introduced him to it. She “was just trying to get a good feel for who they were and if they would be a good fit,” he said. It worked: “We saw somebody who had content on a Web site that were frightening. I looked at it and said, ‘There’s no way we’re moving forward with this individual.’ ” He said the site included “racist, derogatory material.”

His employees, mostly recent college grads, often check sites for him. “I think if you’re making all that information public, if an employer sees it, that’s sort of your own problem,” said Christine Glynn, 25, a customer care specialist at NorthStar, a convention and trade show shipping company.

But not all young ones are full of bad judgment. Her colleague Laura Silverman, 23, said she is on Facebook but limits who can see her profile — and the information in it. “There is no personal information on there at all because I know people who are looking can find it,” she said.

“I believe our personal lives are no longer personal,” said Steven Jungman, a recruiter with ChaseCom LP, based in Houston. “It’s more and more difficult to leave work at the office and more and more difficult to separate personal from business.”

Jungman said he recently had to fire someone he placed in a call center job because the company said her haircut was “distracting.”

“My clients dictate who I hire and what caliber. I’m doing more and more behavioral-based evaluating. They are being evaluated less on what they can do as opposed to who they are,” he said.

Sometimes that outside information can help a career, however.

Erin Rockwell’s husband is in his last year of seminary to become an Episcopal priest, and she works for a Planned Parenthood affiliate doing public policy work.

The Episcopal church has publicly declared that every woman has a right to a medically safe abortion. But often people assume that any sort of Christian religion will be antiabortion, Rockwell said.

That can work in her favor.

When she saw the posting for her position a few months ago, she noted that it called for someone who could connect with the religious community. Her husband’s occupation came up in the interview process and she thought his career track, along with her background as a lifelong Episcopalian, would only help her get the job.

“I have a lot of contacts,” she said. She has been in the job for almost four months now. And she knows that her own background helps her connect with religious leaders and volunteers and could help with her local lobbying efforts.

This was not the first time the career path of Rockwell’s husband has helped her own career. Her first job out of college several years ago was as an insurance claims adjuster. Once, while she was talking to a man who had been in a car accident, he and his wife noticed Rockwell’s engagement ring and asked what her then-fiance did for a living.

She told him he was in seminary. “From then on, it was like, ‘We can trust you. You’re marrying a man of God,’ ” she said.

Here are some jobs where workers stand a VERY real chance of getting outright killed every day of the week. Compare this to the Antis’ claim that working as a bartender for 40 years might raise your chances of lung cancer by about 1 in a 1,000!!!
– A Newsletter Reader

Jobs that can kill

Many of us don’t think twice about our safety when we head off to work, but have you ever considered how safe you are on the job? Many jobs are risky and the following is a list from the U.S. Department of Labor of the most dangerous jobs out there, by fatalities, in 2005:

Agriculture, forestry, fishing and hunting

With a total of 714 fatalities in 2005, this sector has the most fatalities with 32.5 per 100,000 workers.

Mining

In 2005, there were 159 fatalities reported in the mines which equal 25.6 fatalities per 100,000 workers.

Transportation and warehousing

This sector, which covers air, rail, water and ground activities had 881 deaths reported in 2005 making it next on the list for most dangerous jobs with 17.6 fatalities per 100,000.

Construction

With 11 deaths per 100,000 workers (1,186 reported deaths) in 2005, construction is the fourth most dangerous job out there.

The four industries listed above are the most dangerous when it comes to deaths resulting from activities on the job. Whether it’s a result of traffic accidents, falls or being struck by an object, these jobs can kill.

To give you an idea on how dangerous these jobs are, compare them to the average fatality rate for all jobs which is 4 deaths per 100,000 workers.
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