Can boss insist on healthy habits?

By , Correspondent of The Christian Science Monitor

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.

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"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.

Interest in 'wellness' programs

Smokers, 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 can get a discount of up to $480 off their annual health insurance payments, but those with certain health conditions must pay the regular premium if they refuse to take part in wellness programs. The program 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 offer the incentive to their workers, too. [Editor's note: The original version incorrectly described Blue Cross/Blue Shield of North Carolina's health benefits program.]

"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 protections

The 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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