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.

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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.

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