HR Magazine, July 2001 - Legal Trends

By Peter Petesch Jul 1, 2001

HR Magazine, July 2001Vol. 46, No. 7

Workplace Fitness or Workplace Fits?

Maintain a healthy respect for how employees' fitness levels and lifestyles can affect your legal decisions.

You're deciding between two substantively equal applicants for a demanding, high-energy position at your emerging company. Applicant No. 1 lists as his hobbies triathlons and mountain biking—and he looks the part. At first glance, he could probably open up a can of whoop-ass on a Navy Seal.

Applicant Number 2 is shaped like your favorite fruit—a Bartlett pear—and lists as his hobbies grilling meat and watching golf. A pack of smokes shows through his shirt pocket. Applicant No. 2 could open up a can of, um, beer.

Who would you select? Did you choose the person you perceive as fit, healthy and energetic? Would your thinking change positively or negatively toward applicant No. 1 if he was a wheelchair marathoner?

You probably expect a "Legal Trends" column to tell you that you goofed up, that you need to hire the flabby schlub. Well, the truth is you didn't necessarily get in trouble for choosing the athlete, but you need to be aware that growing corporate values of health and fitness may get stretched too far.

For example, if you didn't select the other applicant because he looks like the Pillsbury Dough Boy, and you live in a place like the District of Columbia, have you engaged in personal appearance discrimination (one of the scores of protected classes under the D.C. Human Rights Act)? A clever plaintiff's lawyer might give it a try.

If the individual is so, ahem, "husky" that he or she qualifies as morbidly obese (which is sometimes defined as weighing either twice as much or 100 pounds more than the person's ideal body weight), have you violated the Americans with Disabilities Act(ADA)? (Courts have sometimes, but not always, recognized "morbid obesity" to be a "disability." In other instances, obesity often is not even a "physical impairment," much less one that "substantially limits" one's major life activities, as the ADA disability definition requires).

What if applicant No. 2 has an undisclosed health condition that turns out to rise to the level of an ADA-recognized disability and restricts him from working out and looking like Mr. America? Has the equation changed?

If you didn't know about the person's disability (and chances are that you shouldn't unless the applicant spontaneously volunteered the information), the answer probably doesn't change. If you do know, there could be creative ADA implications.

Legal Discrimination

Under the generally followed yet eroding at-will employment doctrine, an employer can fire (or refuse to hire) an individual for any reason or no reason, so long as the reason is not illegal.

As individuals, we "discriminate" legally every day. No, we cannot discriminate on the basis of age, sex, race, national origin, disability, religion, etc., but we can and do "discriminate"—that is, make and act upon a distinction.

In most jurisdictions, you can prefer the person with healthy eating habits. We assign value to strength, endurance and healthy habits, and translate those virtues to productivity and workplace vigor. It might not be directly job-related, but it is legal. So, within limits, employers can encourage healthy lifestyles. Everyone seems to benefit. Some laws, however, limit the ability to discriminate against "unhealthy" lifestyles. For example, the Health Insurance Portability and Accountability Act (HIPAA) prevents employers from restricting entry into group health plans or charging a higher premium to certain participants on the basis of "health status" (i.e., existing or prior medical condition, disability, genetic information, "insurability" or health claims history).

HIPAA also limits the degree to which group health plans can impose pre-existing condition exclusions. For example, this would prohibit denying coverage to employees who are smokers or who ride motorcycles.

In the same vein, although employers may sponsor wellness or fitness programs to encourage healthy lifestyles, and can even offer certain incentives for participation, employers must be careful in providing reduced health coverage premiums as the incentive.

Case in point: Under HIPAA, the rewards from a "bona fide wellness program" must stem from participation and not necessarily success. For example, if an employee follows a cholesterol reduction program, but does not or cannot lower her or his cholesterol levels to the desired numbers, the employee cannot be denied the reward based on his or her cholesterol level.

HIPAA does not allow employer plans to exclude coverage for individuals who participate in activities such as motorcycling, horseback riding, snowmobiling, skiing and the amorphous "other similar activities." Yet, HIPAA and its regulations—effective March 2001 for plan years beginning on or after July 1, 2001—may allow plans to exclude coverage for injuries from certain undefined "high risk" activities.

This is known as a "source-of-injury restriction." Under the regulations, if the plan covers head injuries, it must cover head injuries from any source, including domestic violence—but benefits may be excluded for injuries from hazardous recreational activities (so long as the injury isn't really the result of any other medical condition).

This may come as a relief to an organization that is seeking to curtail employee health care costs and is sick of paying for treatment of its thrillseekers' broken legs. In the meantime, however, there is no relief from the relatively astronomical health care costs for the employees whose "high risk" activity consists of snarfing Chalupas while watching television. If their hearts explode, it's on your nickel. The broken leg from snowboarding could be on theirs.

HIPAA regulations also remind us that compliance does not necessarily absolve you from sins under the ADA or other laws. Denial of benefits or providing benefits on unequal terms also may raise liability concerns under the ADA (if the individual has a disability or is regarded as such) and even the Employee Retirement Income Security Act (ERISA).

ERISA prohibits employers from interfering with an individual's employment relationship in order to prevent that person from accessing or using benefit plans.

Aside from the ADA implications discussed above, and the issues arising under state or local disability discrimination laws that have a more generous definition of "disability," the ADA forbids asking health-related or medical questions at the pre-offer stage in hiring. The law also restricts medical inquiries of employees to instances that are "job related and consistent with business necessity."

In addition, the ADA raises accessibility questions. For example, let's say that your organization offers an exercise area or gym memberships. Are you prepared to make adjustments to ensure that employees with disabilities can enjoy equal participation in the benefits of your wellness or corporate fitness program?

Benevolent wellness/fitness initiatives can, of course, tread upon employee privacy and lifestyle concerns. How far can or should organizations go into regimenting employees' lives outside of work? A no-smoking (EVER!) policy? Banning all use of drugs and controlled substances (as many employers do)? Declaring pizza and donuts forbidden fruit? Banning high-risk activities such as motorcycling, sun tanning and alligator wrestling?

Years back, Ted Turner of CNN fame outlawed smoking, drinking and unhealthy eating at and outside of the workplace. He refused to hire smokers. How he ever found employable journalists and erstwhile Edward R. Murrows is another unsolved mystery.

To the extent that these "outside work" restrictions are not policed through surveillance or other offensive means, this becomes less of a legal question than a management style and employee satisfaction issue.

Striking a Healthy Balance

Long before it became famous nationwide, the Florida Supreme Court held that it is not a violation of an individual's privacy to require job applicants to disclose their smoking history—and to base hiring decisions on that information. Increasingly, however, states are enacting protection for off-duty smokers and drinkers. Other state law privacy considerations may come into play depending on how draconian your wellness initiatives become.

Don't foreclose wellness and fitness programs under the cynical adage that "no good deed goes unpunished." As with any virtue, wellness initiatives--and our fancy of strength and fitness—can be taken too far.

The "caution lights" surrounding wellness and fitness initiatives, however, are not the same as a red light. The mutual benefits of encouraging and even, in limited circumstances, rewarding wellness, fitness and healthy choices need not be abandoned in favor of a "safe" but sedentary approach.

Peter Petesch is a partner with the Washington, D.C., office of Ford & Harrison, a nationwide employment law firm representing management. He and his colleagues have represented SHRM in a number of friend-of-the-court Supreme Court briefs, and recently prepared SHRM's brief in US Airways v. Barnett, the Supreme Court's first "reasonable accommodations" case under the ADA. Peter coaches soccer and is training for a marathon—not that it should matter.

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