Howard Weyers, president of Weyco, isn’t shy about espousing his belief in controlling health care costs by promoting a healthy lifestyle. As the now-famous employer defended his policy of firing workers who smoke even outside the workplace at a recent conference, many in the audience – employers themselves – cheered his efforts.
“I want to deal with the problem so that I don’t have to pay for the results of it,” he told them.
But some fear he might be taking it too far.
The smoking ban itself, which has made national headlines, doesn’t break any existing Michigan laws where the benefit-services company is based. The problem is that Weyers took the policy a step too far by “policing” it, says Glenn Patton, an attorney at the Chicago law firm Alston & Bird.
Patton and Weyers were part of a panel discussion about employers’ rights to mandate healthy habits that took place at the Consumer-Directed Health Care Congress in May.
If you talk about a stick-and-carrot approach to promoting healthy worker behavior, “Howard’s is a baseball bat approach,” Patton says.
Weyers tests his workers to make sure they’re abiding by the no-smoking policy. But Patton says that testing workers randomly through breathalyzers, at least for alcohol, violates provisions of the Americans with Disabilities Act.
Using breathalyzers is one of eight conditions that allows the test to be considered a “medical exam” under guidance by the Equal Employment Opportunity Council. Under that definition, Patton says medical exams can be administered only if they’re job-related and “consistent with a business necessity.”
The EEOC agrees. “An employer might be hard-pressed to show that a breathalyzer test that tests for nicotine usage is, in fact, job-related and consistent with business necessity,” says Jeanne Goldberg, senior attorney adviser at the EEOC Office of Legal Counsel.
Chris Kuczinski, assistant legal counsel on ADA policy division at the EEOC, elaborates: “Employees must prove that the worker is unable to do their job or poses a direct threat due to medical condition. But even if you consider it a medical condition, can you say it affects their ability to do their job or poses a direct threat due to medical condition? I think the answer is no.”
Weyers has countered that “businesses have the right to protect themselves from the horrendous damage smokers inflict upon themselves and others.” He cites figures from the Centers for Disease Control and Prevention on the costs of smoking-related illnesses: some $75.5 billion in medical expenses and $81.9 billion in lost productivity.
“Weyco’s mission is to help businesses improve employee health and cut costs with innovative benefit plans,”
Weyers states on his company’s Web site. More important, he says, tobacco-related illnesses cost Michigan alone 16,000 lives per year. According to the CDC, smoking is one of three habits responsible for almost a third of all U.S. deaths, or about 800,000 deaths.
Weyers declined to talk to Employee Benefit News for this story, but David Houston, partner at Dickinson Wright and counsel to Weyco, maintains that the smoking ban and its related testing doesn’t break any laws. “We’ve looked at this extensively.”
Houston disputes the EEOC’s interpretations of the ADA. He says Weyco’s one-time testing in early January can’t be considered a medical exam and says the testing wasn’t random because workers had advance notice and everyone was required to participate.
Four employees resigned because they refused to undergo testing for cigarette smoking, according to Houston. If they hadn’t resigned, they would have been fired, he says.
“All of the EEOC’s arguments are based on the assumption that smoking is a disability,” Houston says. “Every court that has considered those issues has decided that neither nicotine addiction nor smoking is protected under the Americans with Disabilities Act,” Houston says.
Not true, the EEOC says. “You can violate provisions of the ADA that limits medical exams without classifying it as a disability,” the EEOC’s Kuczinski says.
You can’t test a worker when there’s no evidence the person is violating a policy, he says. “You’re just simply picking people out to see if they could be smoking.”
Testing is allowed in certain circumstances, such as when an employee has had a past problem with alcohol that can be tied to possible safety violations. For example, if a bus driver has been in alcohol rehabilitation, employers can test the individual to protect the health and lives put at risk by possible abuse, Kuczinski says. “It’s got be reasonable, and if there’s no risk anymore, it’s got to end.”
Drug testing is allowed and doesn’t constitute a medical exam under the EEOC guidance, Kuczinski says.
Even if Weyers were to use a more carrot-like approach by offering programs to live healthier lifestyles, the wellness programs must be voluntary, he says. “It has to reflect a real choice.”
The ADA was passed, he says, to try to keep employers from using medical information to discriminate against employees with disabilities. Lawmakers found “if that information was gathered, it would be used to their detriment – not to their benefit,” he says.
“Evaluate employees based on actual job performance first, and don’t try to make issues medical issues,” Kuczinski says. “Deal with the performance problems.”
Houston counters that employers can hire or fire anyone they like, as long as it’s not discriminatory. “That’s a business judgment,” he says.
“I have listened to every objection, and I don’t believe that one of them or any of them is based on law as it’s been interpreted or on law as it will be interpreted.” – S.M.
Originally written By: Susanna Moon
Employee Benefit News
Employee Benefit News
