Off-Duty Conduct in the News

When should off-duty behavior matter to employers?
On Monday, the Wilmington News Journal published an article about the effect an employee’s off-duty conduct can have on his or her employment. Our Section Chair, Barry M. Willoughby, was quoted in the article.

“Lifestyle discrimination” is a rapidly expanding area of the law with staunch advocates on both sides of the fence. “Off-duty conduct,” is anything an employee does during his non-working time that is not illegal but not usually “good” for you.

This topic first hit the news when employers began firing and/or refusing to hire smokers. This trend has continued to pick up supporters and is more common than ever. Another ideation of the same idea is to charge smokers a premium for health care. The “carrots and sticks” can vary a great deal and some of the better programs supplement these types of rules with “wellness benefits” where employees are eligible for all sorts of rewards for working towards a healthier lifestyle.

Some opponents of this trend claim that the consideration of non-workplace activity is a violation of employee’s privacy rights. Others express concern that the it won’t be long before “wellness initiatives” expand to other areas of employees’ private lives. For example, many critics worry that weight will be the next area of employer-legislation.

The idea is certainly not unimaginable. If employers want to “encourage” employees to get healthier by quitting smoking, it seems reasonable that they would also want their workers to eliminate the many health risks associated with obesity. On the issue of weight-based regulations in the workplace, Barry had the following to say:

“Weight becomes another issue,” said Barry Willoughby, chair of employment section at Young Conaway Stargatt & Taylor in Wilmington. If a person’s weight is due to a provable medical condition, the Americans With Disabilities Act may offer protections, but failing that, workers are at the mercy of the company.

“I don’t know any employer would actually do that,” he said, though complete worker protection for lifestyle choices would be possible only by an act of the General Assembly.

And it is very unlikely that the Delaware General Assembly will pass any broad-sweeping lifestyle anti-discrimination ban any time soon. This is especially unlikely given the State’s disposition for pro-business legislation. Unlike California, where employees have a vast variety of rights, Delaware tends to take a more conservative approach to its regulation of the workplace.

Until such laws were passed, though, businesses can continue to consider tobacco use, weight, or even alcohol use, in making employment decisions.

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