Delaware Employment Law Blog

Employees who smoke are currently unpopular with the nation's employers.  But they are not alone.  The Philadelphia e-zine, Philly Burbs, writes that there are five other "conditions" that employers will avoid in a potential job candidate.  You can decide for yourself whether there is any truth in this claim.

The article quotes the president of an L.A.-based wellness company who says that there are five medical conditions in particular that no employer wants to see. The five he cites include: obesity, depression, hypertension, high cholesterol and musculoskeletal disorders such as low back pain.

Wow! 

The article goes on to say:

“Obesity is quickly replacing smoking as the number one expensive liability for a potential employer,” says Thomas B. Gilliam, president, Industrial Physical Capability Services (IPCS), Inc., Hudson, Ohio. He says that IPCS research indicates that costs related to obese employees have grown from 29 percent of the new hire pool in 2001 to 39 percent in 2007. “The obese worker will cost a company about $2,000 more per year in added health care claims and another $500 per year in lost productivity.”

I've posted before about the [very real] possibility that employers will soon target obese employees as the workplace becomes ever more focused on "wellness."  A combination of factors makes this result likely.

Primarily, he number of smokers will continue to decline.  Smokers receive harsh treatment and ostracism from society in large and, certainly, from mainstream corporate America.  In addition to the social pressures to abandon tobacco use, the country's employers have proclaimed smoking as an enemy to business--both from a productivity and expense perspective. 

For nearly 10 years, employers increasingly have used employees' tobacco use as a hiring qualification ("We don't hire smokers") and as a basis for higher health insurance premiums.  But eliminating smokers from the workplace will not create the ideal productive environment nor will it prevent the cost of health insurance from continuing to increase.  So what, then?  It seems logical that, once the "problem" (smoking) is eliminated, but the effects of the problem remain (productivity and high insurance costs), employers will simply elect a new "problem" to target. 

Obesity as a "problem" is not a far-flung idea.  Already we have seen fast-food chains change their offering to include healthier options, such as salads and fruit.  Even the addition of wellness programs promotes the idea of weight loss and a healthy body size.

Further support of this argument can be seen in the recent announcement of American Airlines that it will charge passengers $15 for the 1st checked bag and additional, higher premiums for the 2nd, and 3d bags.  The airline has defended this tremendously unpopular idea by citing the high cost of fuel.  Luggage weighs more.  The heavier the plane, the more fuel that is required to operate it.  Does it seem like a natural extension of this proposition that passengers will be charged extra if they "bring" extra weight on board, thereby causing the plane to use more fuel?

Of course, you may think this is absurd.  And, I admit, so did I.  But as outrageous as the thought may be, the local news today featured an "expert" on the airline industry who said, affirmatively and convincingly, that he believed that the next step would be to charge travelers for "extra weight" the next time they fly the friendly skies. 

Again, wow.

Genetic testing is a key advance in preventative health care. But opponents of DNA testing worry about privacy issues--that employers may use genetic data in making employment decisions. The Genetic Nondiscrimination Act of 2007 (GINA) is intended to prevent that.

The Act was unanimously accepted by the Senate with a vote of 95-0. After final approval from the House, it will go to the President's desk for signature. It could be signed into law as early as next week. The act will protect individuals against discrimination based on their genetic information when it comes to health insurance and employment. These protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. The purpose of GINA is to ensure that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. Up until now, individuals who tested positive for a certain type of cancer gene could be denied insurance coverage or employment based on his or predisposition to developing cancer years down the road.

“It means that people whose genetic profiles put them at risk of cancer and other serious conditions can get tested and seek treatment without fear of losing their privacy, their jobs, and their health insurance,”

said Ted Kennedy (D-Mass.).

The debate is not a new one--the bill was rejected more than 10 times before it passed. And during those 10+ years, Delaware passed its own genetic antidiscrimination law. Delaware is one of 35 states to prohibit genetic discrimination in employment. State laws typically protect "genetic information." A number of states, including Delaware, have passed or are considering bills that expressly include and requests for genetic services. The Delaware law also makes it unlawful for an employer to "intentionally collect" genetic information unless it can be demonstrated that the information is job-related and consistent with business necessity or is sought in connection with a bona fide employee welfare or benefit plan.

Of the 35 states with these laws, though, there has not been a single suit filed on the grounds of "genetic descrimination," although the EEOC did settle a genetic-discrimination claim that was filed under the Americans With Disabilities Act. In that case, the employer, Burlington Northern Santa Fe Railroad, was alleged to have obtained blood samples from employees that would later be used for genetic testing, unbeknownst to the employees. The employer ceased the conduct within days of receiving the EEOC's complaint and eventually settled the suit.

Additional Resources:
The National Conference of State Legislatures maintains a comprehensive website on laws dealing with genetics and genetic testing if you're interested in where your state currently stands.

But the most detailed resource, by far is that of the National Human Genome Research Institute, (NHGRI) at genome.gov. The NHGRI's site inlcudes dozens of helpful explanations about just about everything genetic--including the legal, social, and ethical implications of genetic testing.

To review GINA's passage through the House and Senate, visit thomas.loc.gov.

From a women's health perspective, U.S. News & World Report's Deborah Kotz's article is a worthy read.

And, as always, our friends at HR Hero has a whole cache of easy-to-read and to-the-point articles on the Genetic Testing page of their website.