Delaware Employment Law Blog

Get Fit or Get Fired? No, but if you're employed by the State of Alabama, you'll have to pay higher insurance premiums.

Fat employees, beware. The State of Alabama has issued an official “crackdown” on unfit employees. That’s right. The state has issued a get-fit mandate. Employees have one year to “see the light,” so to speak. Either get moving towards thin or face a bulging health-care premium. Employees who fail to trim their waistlines will pay $25 a month for insurance that will be free to their leaner coworkers.

Alabama is the first state that has elected a “stick” approach to motivating employees to get healthy. There are a few states that offer rewards (i.e., carrots), to employees who make healthy lifestyle changes. Like many other employers, both public and private, Alabama already charges a premium to employees who smoke.

So what exactly is required? According to the New York Times article, Extra Pounds Means Insurance Fees for Ala. Workers, beginning in January 2010, state workers will be required to undergo health screenings—or face a monetary penalty if they refuse. If the screening reveals problems with blood pressure, cholesterol, or obesity, they are given one year to shape up or ship out. At a follow-up screening after twelve months, they won’t face the $25 charge.

And what will qualify employees for a passing grade when they take the screening test next year? Employees with a Body Mass Index (BMI) lower than 34 will be exempt from the “obesity charge.” A BMI of 30 is considered the threshold for obesity. And if you fail the screening? Other than being required to “make progress,” the State has not yet determined exactly how “progress” will be defined.

Maybe the most obvious question is just how the State of Alabama thinks that its out-of-shape employees, many of whom have been battling their weight, cholesterol, or other health issues for years, will suddenly develop the motivation, knowledge, and skills to make these changes. Deeply rooted lifestyle changes are not made because of an HR initiative.

If I sound cynical, it’s because I am. When employers stopped hiring smokers and charging employees who smoked, I was skeptical. Although there are obvious and undisputable benefits to a tobacco-free workforce, I worried that the proffered motivation was a bit too “glossy” to be true.

I also wondered how long it would be until there weren’t enough smokers left to make them a valuable target. At that point, what group would be the next to be targeted? I suspected it would be obese or overweight employees. It seems my prediction has come to fruition. At least for overweight government employees in a state where 30.3% of citizens are obese.

Corporate America, listen closely! Can you hear that sound?  It's the whoosh, thump, whoosh, thump, whoosh.  It's the pounding of feet on the two-ply treadbelt as it comes speeding around again and again.  Wait! What's it doing here, in Corporate America?  Your employer is going to make you healthy, darn it--like it or not!

Now, don't say you have no idea what I'm talking about.  Haven't you been reading our blog?  We've talked about employers' sheer determination to fight the battle of the bulge, whether employees like it or not.  We've talked about how many employers cite the rising costs of health care as the motivator for companies to implement wellness programs of every shape and size.  Employers have might even be getting pushy about their employees' health.  (Even to the point that some have begun to regulate what their employees' are scarfing down at meals).

And do these wellness programs actually work?  Some say yes, without a doubt.  Others say that wellness programs are running out of steam as more and more workers abandon their diet and exercise programs.  So, what is an employer who cares about its employees do to help them to learn to value a healthy, active lifestyle? 

Buy them a walkstation, of course! 

We posted about these walk-your-workday-away-machines back in March, at which time they were still more fantasy than reality.   But the collaborative news hounds of everything work-from-home related at Web Worker Daily, have an update. They report that Steelcase, the well-known manufacturer of office furniture, filing cabinets, and the like, has officially introduced the Walkstation to cubicle workers across the country.  From Web Worker:

Based on the idea that you can burn enough calories to make a difference, even if you don’t work up a sweat, the Walkstation marries an adjustable-height desk and monitor arm with a low-speed treadmill

There are plenty of other bells and whistles here, including a magnetic sensor that automatically stops the treadmill should you be carried away from your desk, and an optional convertible model that lets you switch from office chair to treadmill at the touch of a button. The drawback? Cost, mainly: buying one of these will set you back $4300.

If it's of any comfort, I am fairly competent that most employers won't be jumping at the idea of this size investment--especially after the first time the news reports that an employee was whisked right off of the Workstation, sustaining serious injuries and filing suit against her employer. 

We've posted before about the "next big thing" in employment discrimination: obesity-based bias.  (See Is Obesity the Next Protected Class? and U.S. Businesses Recognize the High Cost of Obesity–Should Delaware Employers Do the Same?)

It has been speculated that, as the cost of health care continues to rise, employers will continue to charge employees higher premiums based on certain health-related factors.  Today, it's employees who smoke.  Tomorrow will it be employees who are overweight?  French employees don't have to worry about this potential problem.

The French parliament has been working on a law that would make it a crime to promote extreme thinness.  Fashion industry experts have opposed the efforts, claiming that there should not be a legal boundary on beauty standards.

Source:  Fox News.com

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.

Employers face another obesity obstacle.

As everyone knows, Americans have been gaining more and more weight over the past forty years or so, as confirmed by the National Institute of Health’s website. Reading the recent post in this blog about obesity policies made me wonder whether the Americans with Disabilities Act is the only law that such a policy might conflict with. What about Title VII of the Civil Rights Act of 1964?

One of the lesser-known ways of getting into trouble under Title VII is through unintentional discrimination, also known as “disparate impact.” That’s where an employer adopts what appears to be a race-neutral, gender-neutral rule for making selection decisions such as hiring, promoting or terminating employees.

If the policy adversely affects one race or gender more than another, the employer will have to show that the rule is “job related for the position in question and consistent with business necessity.” If the employer can make this showing, the plaintiff is must point to an available alternative practice that does not have a discriminatory effect.

So my question is, would an anti-obesity policy have an adverse impact on any protected group? Here’s what the NIH website says:

Q: What is the prevalence of overweight or obesity in minorities?
A: Among women, the age-adjusted prevalence of overweight or obesity (BMI > 25) in racial and ethnic minorities is higher among non-Hispanic Black and Mexican-American women than among non-Hispanic White women. Among men, there is little difference in prevalence among these three groups [6]. Sufficient data for other racial and ethnic minorities has not yet been collected.

Non-Hispanic Black Women: 79.6 percent Mexican-American Women: 73 percent Non-Hispanic White Women: 57.6 percent

Non-Hispanic Black Men: 67 percent
Mexican-American Men: 74.6 percent
Non-Hispanic White Men: 71 percent

(Statistics are for populations age 20 and older.)

Studies using this definition of overweight and obesity provide ethnicity-specific data only for these three racial and ethnic groups. Studies using different BMI cutoff points derived from NHANES II data to define overweight and obesity have reported a high prevalence of overweight and obesity among Hispanics and American Indians. The prevalence of overweight and obesity in Asian Americans is lower than in the population as a whole.

A study published in the Epidemiologic Review similarly reports that “[m]inority and low-socioeconomic-status groups are disproportionately affected at all ages” by obesity. The prevalence of obesity also increases with age, according to the same study.

It’s food for thought, and perhaps more fodder for creative plaintiffs’ attorneys or the EEOC.

Delaware businesses, if you worry about obesity and its effects on your workforce, you are not alone. Across the country, there has been a sharp turn in focus by major businesses and commercial organizations. The focus shift has been towards obesity as a costly characteristic of our modern workforce.

As discussed in earlier posts, many observers worry that the current trend in refusing to hire smokers will spill over to other areas of employees’ health. Obesity is commonly cited as the next likely target.

There is, certainly, some logic behind the argument. One place to find support for the idea of regulating employee’s waistlines can be found in the report by The Conference Board, Weights and Measures: What Employers Should Know about Obesity. In its report, the Conference Board examines the financial and ethical questions surrounding whether, and how, U.S. companies should address the obesity epidemic. The report was featured on April 9th’s episode of Marketplace, public radio's popular business program.

Some of the findings from the study include:

~Obesity is associated with a 36-percent increase in spending on healthcare services, more than smoking or problem drinking.

~More than 40 percent of U.S. companies have implemented obesity-reduction programs, and 24 percent more said they plan to do so in 2008.

~Estimates of ROI for wellness programs range from zero to $5 per $1 invested.

~ROI aside, these programs may give companies an edge in recruiting and retaining desirable employees.

~Meanwhile, some say it may be more effective just to award employees cash and prizes for weight loss rather than devote resources to long-term wellness programs.

~Employers need to weigh the risks of being too intrusive in managing obese employees against the risks of not managing them

But NPR isn’t the only organization tuned in to the obesity debate. Bloomberg.com also featured the Conference Board’s findings this month, as did Forbes.com. Human Resources professionals are also turning towards the issue, as demonstrated by the articles at Society for Human Resource Management (“SHRM”), The Salary Reporter, and this article by Larry J. Rector from the West Virginia Employment Law Letter, which can be found through the H.R. Hero website.

If these big-name players have turned their focus to the “obesity crisis,” should Delaware employers do the same?

For previous posts about the increasingly close involvement employers have in the private health matters of their employees:

Off-Duty Conduct in the News

There's No Hiding From Your Own Bad Habits

Are Today's Wellness Programs Running Out of Steam?

DOL Offers Compliance Tool for Wellness Programs

Is Obesity the Next Protected Class?

The Link Between Race & Obesity

Employers and smokers have been making headlines. Just last week, Whirlpool made the news when it terminated 39 employees after they were caught smoking, despite having signed statements when they were hired swearing that they were non-smokers.

Over the past several years, it has become more and more common for employers to have stopped hiring smokers or to require smokers to pay higher premiums for health insurance. But not everyone agrees with the idea of punishing employees based on health-related factors. Some cite privacy concerns and paternalism as reasons why employers should not become involved in what employees do off the job. And others worry about what will come next. Currently, it is socially acceptable to ostracize smokers. And, in most states, including Delaware, there's nothing unlawful about it.

But what about other health factors, like obesity? Will employers next target overweight and obese employees with higher health care premiums? Will businesses refuse to hire applicants who are over a certain body mass index (BMI)?

Some employers, like Westgate Resorts, a vacation-properties company based in Orlando, Florida, are trying to push employees into healthy lifestyles, which includes reducing obestity. At Westgate, employees aren't penalized to lose weight but those who do are rewarded with a variety of incentives. Michigan is the only state, in addition to the District of Columbia, to prohibit discrimination based on weight. But, in other states like Delaware, where obesity is not a protected class, there would be little legal risk to implementing a weight-reduction policy. Of course, as my mother would say, "Just because you can, doesn't mean you should."

Employers should consider non-legal implications of such a policy. For example, how to define "obese." If BMI is the only determining factor, you might not have many employees--more than two-thirds of Americans qualify under this definition. Or what about the woman who gained 60 lbs during pregnancy and isn't in a real rush to get lose it right away? And how do you handle an employee who states that his obesity is related to another medical condition. This would sound the alarms of both HIPPA and the Americans With Disabilities Act (ADA). And would gastric bypass or other bariatric surgeries be pushed on employees as a "solution" to weight struggles? How will they regulate weight on a more organic level?

For example, will there be a ban on the sale of Girl Scout cookies?

That announcement would make headlines, for sure.

The topic of off-duty conduct has been unavoidable recently.

First there was the wave of large companies who stopped hiring smokers or charged higher health care premiums to employees. Sure enough, this trend resulted in a lawsuit challenging the legality of making employment decisions based on what candidates and employees do outside of work. The conditional-employee sued Scotts when his conditional job offer was revoked when he tested positive for nicotine. (Scotts doesn't hire smokers).

Next came a wave of talk about GINA, the Genetic Information Nondiscrimination Act, proposed to prohibit employers from basing employment decisions based on genetic information. It would also put limits on the amount of detail employer about an employee's family medical history and other private data.

And don't forget the internet! Employees who post on blogs, in chat rooms, or on social network sites like MySpace and FaceBook have a lot to stay. What are employers to do when their employees (current or former) are giving away trade secrets or other confidential information? And what about the bitter employee with lots of complaining to do and an unlimited audience ready to listen.

What's next? Well, if you ask Governor Spitzer, he might have his own opinionson this topic. His "off-duty conduct" has resulted in his resignation and a great deal of commentary for morning news shows and late night comics alike. Some may argue that the difference between smoking and engaging prostitutes is legality. Smoking, at least for now, is a legal activity. You can pick up a pack of cigarettes at any corner convenience store. Not so with prostitutes. They can be picked up, true, but it is unlawful to do so. Yet, both activities will land you in a similar position--unemployed.

So where should employers draw the line? That's a question for another day. Some critics claim that weight will be the "new tobacco." Will employers, who face rapidly increasing health care costs, next turn to overweight employees and make them an offer they cannot refuse--lose weight or lose your job. Or will the same objective be attempted through higher health care premiums?

And will they charge by the pound?

Barry M. Willoughby, our Section Chair, commented on this issue last week in the Wilmington News Journal.