If You Light Up On Sunday, Don't Come In On Monday

Two years ago, Ford Meter Box in Wabash, Ind., decided it would no longer hire any smokers. Janice Bone was a payroll clerk for the small manufacturer. When a urine test uncovered nicotine traces in Bone's sample, Ford fired her. The incident helped privacy proponents pass an Indiana state law protecting employees who smoke away from work. But Bone, who has filed suit against Ford, has not gotten her job back.

Daniel C. Winn made nearly $9 an hour setting up machinery at Indianapolis' Best Lock Corp. He was fired after he testified in a relative's legal hearing that he drank socially from time to time: Best Lock forbids alcohol consumption by employees, even after work. Best also contested his right to receive unemployment benefits, claiming he was fired for cause. A state court ruled Winn eligible, but Best notes that the court didn't hold its "no-drinking" rule invalid.

Do you smoke? Drink? Eat more than you should? Your employer is getting very interested in your answer. It may cost you more in insurance coverage; there's even an off chance that it could cost you your job. As medical expenses whirl skyward, more companies have begun to see smokers, drinkers, and workers who engage in other "high-risk"--but legal--activities as a burden. Johnson & Johnson Health Management Inc. of New Brunswick, N. J., which sells wellness programs to companies, estimates that 15% to 25% of corporate health care costs stem from employees' "unhealthy lifestyle conditions." With health care costs rising a grim 9% each year, employers note, why shouldn't individual employees take responsibility for their behavior--especially since corporate health coverage is a perk in the first place?

The employers' concerns are justifiable. Still, they raise a range of questions about the employee's right to privacy away from the workplace. So far, only a handful of companies have taken the extreme stance of Ford Meter or Best Lock. But many others are instituting disincentives for staffers they deem high-risk--charging them more for health insurance, for example.

Existing civil rights laws don't generally protect against "lifestyle discrimination," because smokers and skydivers aren't named as protected classes. But since 1989, 20 states have passed laws banning discrimination against smokers, and a few give much broader protection. The backers of such laws are tapping a wellspring of sentiment that employers have no business telling employees how to run their private lives, as long as what they do doesn't interfere with how they do their jobs. "When they start telling you you can't smoke on your own time, the next thing you know they'll tell you you can't have sex but once a week, and if you have sex twice a week you're fired," declares Oklahoma State Senator Carl Franklin, a backer of Oklahoma's smoker-protection law.

AFTER HOURS. Employers have always had concerns about some off-hours activities: moonlighting, politicking, fraternizing with competitors' employees. But the technological advances and social ills of the 1980s brought with them a host of workplace privacy issues. The result was a new generation of laws and court decisions spelling out how far an employer can go in certain areas. Congress has largely banned the use of polygraph testing. The U. S. Supreme Court has upheld a federal law that prohibits discrimination by federal contractors against persons with communicable diseases such as AIDS. Ten states have restricted drug testing.

Nevertheless, some companies continue to decide what's best for their workers. For example, Johnson Controls Inc., a Wisconsin auto-battery maker, had a policy that barred female employees of childbearing age from certain jobs--because the exposure to lead in those jobs might harm any fetus they might conceive. In March, the Supreme Court struck down that policy, ruling that an employer's assessment of risks should not be substituted for an individual's own judgment. And plenty of employers still try to enforce their own moral codes when it comes to the sensitive issue of sexual preferences.

The privacy issue is touching more aspects of life after hours: everyday activities such as whether you use a seat belt, how much you exercise, and even what sports you like. Multi-Developers Inc., a 100-employee property-development and management company in Georgia, won't employ workers who engage in "hazardous activities and pursuits including such things as skydiving, riding motorcycles, piloting private aircraft, mountain climbing, motor vehicle racing, etc." The impetus for this policy was a very large injury claim the company recently paid. Without this step, Multi-Developers says, coverage for all its employees might have gotten too expensive.

SMOKE-BUSTERS. Already, many employers won't hire smokers. Since 1987, USG Corp., a Chicago building-materials maker, has banned smokers from the ranks of 1,200 workers in eight plants. Its concern: Smoking might lead to a higher incidence of lung disease among workers who work with mineral fiber used in making tile. Turner Broadcasting System Inc. won't hire smokers at all. "We think we have the right to employ the kind of person we want to have--and that's a nonsmoker," says William M. Shaw, vice-president for administration.

The city of North Miami requires job applicants to sign affidavits certifying they don't smoke, and haven't for a year. Arlene Kurtz, a candidate for a clerk-typist positon, refused to sign and now is suing the city for violation of her right to privacy. Fumes Kurtz (a smoker): "How can they tell me what to do when I'm at lunch, or in my own home, or over the weekend?" To save on health costs, replies the city's attorney, Pedro P. Echarte: "As a taxpayer, I would like to see my money go into improved schools, roads, and parks, not smoking-related illnesses of government employees."

Cracking down on smokers is understandable, because the dangers of tobacco are so well-established. The fear, of course, is that once employers start questioning one type of employee behavior, the list of unsuitable habits will grow. "Why would an employer tell you to knock off smoking at home and not tell you to knock off the beer, if the beer is bad for you, too?" asks Lewis L. Maltby, director of the American Civil Liberties Union National Task Force on Civil Liberties in the Work Place. Muses Michael E. Miller, vice-president for administration at Monsanto Co. in St. Louis: "What about the guy who eats fried chicken 20 times a month? I can hear it all coming." In fact, it did come to Athens, Ga. The city government there used to give every job applicant a cholesterol test, eliminating candidates whose levels ranked in the highest 20%. Local protest scotched the policy.

It is mainly small businesses that so far are taking broad measures. But not even large employers can ignore the fact that certain habits and health conditions can prove expensive. A four-year study of Control Data Corp. employees found that people with hypertension spent 25% more days in the hospital than those with normal blood pressure and that medical claims of overweight people were 11% higher than those of people who weren't. Smokers who work for the state of Kansas spent 69% more time in the hospital than nonsmokers did last year and cost an average $1,137, vs. $854 for nonsmokers.

Many companies take a positive approach, in the shape of financial incentives that give employees who live right the chance to profit by it. Half of the 22,000 persons covered by Southern California Edison Co.'s medical plan have reduced their annual premium by $120 under the corporation's good-health rebate program. They qualify if their weight, cholesterol, and other statistics are within certain bounds. At Atco Properties & Management Inc., a small New York City real estate firm, CEO H. Dale Hemmerdinger pays employees for each pound they lose. And if they walk up the 16 flights of stairs to the office all year, they win a $500 bonus.

SIN SURCHARGE. But while some companies proffer a carrot, others favor the stick. In a recent Harris Poll for Metropolitan Life Insurance Co., 86% of 1,175 executives surveyed found it "acceptable" to charge higher premiums for unhealthy habits. Since the presence of smokers in a work force drives the group rate up, there is a growing interest in charging smokers more for their insurance--rather than spreading the cost equally among all employees. "Why should we continue to do that when all the medical evidence says smoking leads to health problems?" asks Miller of Monsanto, which is toying with a surcharge.

No reason at all, or so Texas Instruments Inc. figured. This July, spurred by an in-house study showing that smokers' health costs at TI were 50% higher than nonsmokers', the company began charging employees $10 a month for smoking outside work. The same sum is levied for up to two of the employees' dependents if they smoke, too.

The new charges have prompted no great outcry, perhaps because smokers recognize their puffing is so unpopular. Most of them are bothered, though, that the charge doesn't apply to other habits. "I think they should go and investigate all types of lifestyles that may increase risk to the company," says a TI programmer who pays $20 more each month because he and his wife smoke. "Someone who jumps out of airplanes for jollies or who races cars on weekends, that could cost the company, too."

Such disincentives will save plenty, enthusiasts say. Oil-field equipment maker Baker Hughes Inc. says its $10 surcharge on smokers has helped reduce the number of employees who call themselves smokers by 7% in the past year. (Baker Hughes and other companies generally rely on an honor system to identify smokers.) Its renewal rates for health coverage won't rise at all this year, compared with 20% increases for the last four years.

But as much as companies can associate unhealthy habits with higher costs, there's precious little data proving that they can significantly lower costs by inducing employees to change those habits. Although high blood cholesterol is associated with higher health risks and costs, notes Kenneth E. Warner, professor of public-health policy at the University of Michigan at Ann Arbor, "what happens when you lower that? We don't know yet."

MORE CAUTION. Obesity also has been linked to higher incidence of major illnesses and chronic diseases. However, some medical evidence suggests that losing and regaining weight may be more hazardous than being overweight in the first place. In some states, obese individuals have brought--and won--weight-discrimination lawsuits. In 1985, Xerox Corp. had to offer a position, some back pay, and accumulated pension to Catherine McDermott, who was refused a job because of her weight. Xerox claimed that if she were hired, it would have to pay higher disability and life-insurance costs. That argument didn't persuade the court, which held that obesity was a handicap under state law.

Such rulings may become more common when the Americans with Disabilities Act takes effect in 1992. Although it doesn't protect lifestyle behavior per se, the act will force more caution in the use of preemployment medical exams. Employers will be able to reject only applicants who can't perform the job. Concern about medical costs won't be a reason for withdrawing a job offer.

These measures are not likely to solve the basic question of how much say an employer should have in an employee's life. Columbia University professor and privacy expert Alan F. Westin worries that if the trend toward lifestyle discrimination persists, employers will eventually hire from a narrow group, "those that are healthiest and cost us less." Eventually, we "could become a two-class society," Westin argues, with "one that is perceived as fit and healthy and the unhealthy rest who would be unemployed or marginally employed."

Even if things never get to that point, there's ample evidence that the conflict over workplace privacy is intensifying: As more states pass lifetyle discrimination laws, they provide grounds for legal suits over these issues. Until the verdicts are in, it will be tough both for employers and employees to draw the line between "what's good for business" and "minding your own business."

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