In the Trenches: How ill-fated health improvement attempts intrude in employees' private lives

In this installment of In the Trenches, Acme tries to improve employee health and cut its costs at the same time.

Recently, although the revenue side of Acme’s economy was moribund, the expense side of its ledger remained vibrant and alive, twisting, squirming and inexorably rising to new heights of perfection. Acme felt the distinct pinch to its once-much-chubbier bank account. And the shareholders became restless; a situation that typically motivated Acme’s overpaid management team to engage in yet one more of the curious responses it has been parading before you during the past 15 years.

Of particular interest to the hatchet-wielding group on Mahogany Row is the recurrent cost of that deadweight boat anchor, the employee benefit package. Employees were no longer getting a paid vacation day on their respective birthdays. After all, that perk was discriminatory because those folks whose big day falls on a weekend miss out.

But a larger element of Acme’s cost structure is the comprehensive medical insurance program for employees. Certain that eliminating it completely would lead to a minor riot in the short term and mass exodus in the long term, the management team changed the program to one that features much higher co-pays and much lower reimbursements, thus shifting more of the financial burden to the workers. After all, workers must experience a negative consequence should they persist in their wanton use of all those unnecessary elective medical interventions.

As part of an effort to further reduce medical (and life insurance) costs, Acme instituted a policy that prohibits any employee from smoking tobacco at any time, at any place, on company time or off the clock. After all, there’s a new state-wide ban on smoking in public buildings. Besides, being part of a healthier, nonsmoking workforce is in every worker’s best interest. If one can quit smoking for a year, one can stay off the “filthy weed” forever. In the long run, total and absolute abstinence from nicotine can only reduce the cost of medical coverage for every worker, regardless of age.

A few months later, Acme was pleased to discover that these and other pieces of its clever package of cost reduction initiatives had prompted merely a minor exodus. That outcome was part of the reason for hiring John Smith, the company’s newest licensed journeyman plumber, who embarked on the standard 90-day probationary period, but, of course, at a somewhat reduced pay scale.

In accordance with the terms of the company-wide tobacco ban, employees, including John, were obliged to submit to a urine test each month during the first year to prove they didn’t smoke and to monitor the success of the policy. John’s first test came back positive for nicotine, which earned him a severe rebuke from Les Danze, his supervisor, and a threat of termination if the test next month also came back positive. Les inserted a written warning into John’s personnel file.

At least once a week, Les was sure to threaten John with termination if he refused to provide the next urine sample and to nag at him with repeated warnings that this was his last chance. Each time, John was strident about his perfect right to smoke cigarettes whenever he’s off Acme’s property and on his own time. He argued that he had a right to the pursuit of happiness as he defined it; the constitution told him so.

A few weeks later, John had no choice but to provide another sample. The resultant lab report again showed the presence of nicotine. At the end of the current shift, Les and Anne DeLucia, the HR director, called John to a conference room, where he was most unceremoniously handed a copy of the lab report and a proverbial pink slip, in duplicate, and ordered to turn in his Acme uniform before he left the premises for the last time.

John fought back through the courts, claiming he was fired because he refused to be subjected to a highly discriminatory and blatant invasion of privacy. He also claimed that Acme’s actions violated his civil rights.

How could this situation have been avoided? Do smokers have a right to indulge? Can a company dictate an employee’s actions away from the plant? Can company rules trump state regulations? Does John Smith have a valid argument in asserting his Constitutional right to the pursuit of happiness?

A corporate consultant says:

John might have actually taken to heart the job requirements and not taken the position. He clearly understood the expectation and accepted a position knowing he wouldn’t comply. Acme might have used a more creative policy. Perhaps Acme could offer lower-cost insurance to those who don’t use tobacco, but require users to pay the difference for the higher-premium insurance. In addition, Acme should recognize both the addictive nature of nicotine and the social and cultural attachment many people have with their right to smoke. Recognizing the difficulties people face when trying to quit, Acme could have instituted a smoking cessation program to support those who need assistance. While actively engaged in the cessation program, the lower health insurance rates could be applied with the company footing the bill.

Smokers have just as much right to smoke as others have to a smoke-free environment. In the workplace, both smokers and non-smokers need to recognize the rights of others. Courtesy and reasonable policies can help avoid disputes.In many situations, a company can and should dictate an employee’s actions. Would you like to live next to a plant that produces toxic compounds, but has no policies or requirements requiring well-rested operators free of substance-induced impairment?

However, there are practical limits. Activities that don’t have a significant effect on job performance should be left to the employees’ discretion. In legal terms, the federal government has a position (liberty of contract) that says a company is free to negotiate terms with others, and others are free to accept or reject those terms. Employees have the right to know what is expected of them and they can decide to accept employment or not. A company must consider the downside of overly restrictive policies: potentially higher turnover, difficulty attracting prospective employees, etc.
 
In the context of the smoking policy, Acme can make not smoking a condition of employment. In that sense, it can have rules that are more restrictive than government regulations. This is frequently the case in safety and environmental regulations — companies provide more training or are more restrictive in the way they manage these programs. Certainly, a company can’t override laws, such as allowing employees to improperly dispose of hazardous waste, or paying less than the allowable minimum wage.
 
If John is a U.S. citizen, of course he has the Constitutional right to the pursuit of happiness. He could have chosen to subjugate his happiness (smoking) to the other “happiness” of earning an Acme paycheck. The pursuit of happiness is alive and well, but there’s no requirement for Acme to accommodate John’s ultimate happiness: a job with the freedom of smoking when and where he wants. John basically made his choice by not accepting the terms of employment.

Tom Moriarty, PE, CMRP
Organizational Reliability Professional Services Consultant
(321) 773-3356
tjmpe@alidade-mer.com

An academician says:

The issue of how much control an employer has over an employee’s off-the-job behavior is very interesting. Usually, there’s no argument when it comes to behavior that might endanger lives on the job. For example, the FAA requires pilots to avoid alcohol consumption eight hours before a flight and might require testing to ensure that there’s no alcohol left in the pilot’s system. One often sees trucking companies establish similar rules. And many companies require random drug testing.

Some companies have general policies that say an employee can’t engage in behavior that might reflect on the company’s image. An example might be the teacher who was caught with a home computer full of child pornography. Or the small-town bank employee who spends a lot of time at the local casino.

Some companies have general policies that say that an employee can’t engage in behavior that might reflect on the company’s image. An example might be a teacher who is caught with a home computer full of child pornography. Or the small-town bank employee who spends a lot of time at the local casino.

The smoking case is interesting in that the companies with a smoking ban don’t argue that smoking affects employee performance negatively, nor does it affect the image or reputation of the company negatively. Rather, the argument for the ban is based on the employee’s health and the costs of health insurance. Proponents of the ban argue that they’re saving the lives of their employees, and saving the company and all employees a lot of money on the health insurance (assuming that employees pay a significant portion of the premiums).

The smoking case is interesting in that the companies with smoking bans don’t argue that smoking affects employee performance negatively, nor does it affect the image or reputation of the company negatively. Rather, the argument for the ban is based on the employee’s health and the costs of health insurance. Proponents of the ban argue that they’re saving the lives of their employees, and saving the company and all employees a lot of money on health insurance (assuming that employees pay a significant portion of the premiums).

The opponents of the ban claim it infringes on their personal freedom and constitutional rights. And they raise the question as to how far company intrusion into their personal lives can go. Poor diet also is the cause of many medical problems, so could the company restrict or control what you eat at home or at restaurants? Can a company dictate how much alcohol an employee is permitted to consume in a given time period? Or could it ban what recreational activities you engage in (some pro basketball contracts prohibit players to ride motorcycles or engage in any recreation that might be “dangerous”). And how is all of this going to be enforced?

I think the jury is still out on this issue. Most states probably would side with Acme and uphold its right to ban cigarette smoking off the job, although in other states the ban might not float (the message here is check your state laws). However, the off-the-job smoking bans are very recent and I’m sure we’re going to see a lot more challenges regarding how far companies can push their control over off-the-job employee’ behavior.

Professor Homer H. Johnson, Ph.D
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

Smokers aren’t protected as a minority group under any civil rights legislation, so John is unlikely to achieve legal victory as a victim of a civil rights violation. Similarly, his invasion of privacy claim lacks merit. John wasn’t forced to provide urine samples. After all, providing a monthly sample merely constituted a condition of employment. He was free to deny Acme its sample and walk away from the employment relationship.

However, some states have laws that prohibit employers from discharging or in any other way discriminating against employees because of their use of lawful products outside the workplace. These types of laws protect not only smokers but other employees engaging in lawful but perhaps unhealthy behavior off-duty — overeaters, nail biters and bulimics, for example. If Acme were located in a state that had such a law, John would prevail in court.

However, some states have laws that prohibit employers from discharging or in any other way discriminating against employees because of their use of lawful products outside the workplace. These types of laws protect not only smokers but other employees who engage in lawful but perhaps unhealthy behavior off duty. This could include overeaters, nail biters and bulimics, for example. If Acme were located in a state that had such a law, John would prevail in court.

Most employers, like Acme, face burgeoning healthcare costs. Many believe that smokers contribute significantly to the escalating cost of medical care for the nation’s workers. Some companies have attacked the problem by requiring smokers to pay a higher share of the cost of their group medical coverage than non-smokers. But that, too, poses a problem under some laws that govern employee benefits. Those laws permit employers to charge employees reduced healthcare premiums based on activities they undertake to improve their health, such as diet, exercise, and smoking-cessation programs. That would have been the preferred approach for Acme.

But apart from those states that prohibit Acme from discriminating against employees who indulge in undesirable, although legal, activities outside the workplace, Acme was free to impose any conditions it wished on its workforce, as long as those conditions contravened no other law. Whether that might be the wisest course of action is subject to debate.

Would Acme, for example, reject a perfect candidate for a long-unfilled CFO slot merely because the candidate is a smoker?

Julie Badel, partner
Epstein Becker & Green, P.C
(312) 499-1418
jbadel@ebglaw.com

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