Intrusive ‘wellness’ policies and rules on off-duty behavior are becoming widespread.
Nearly a decade after she stopped smoking, Mabel Battle still has the last pack of cigarettes she ever bought. She keeps it as a reminder of all the gray Ohio winter workdays she spent standing outside her office with the other shivering smokers getting a nicotine fix.
The cigarette pack is a testament to her willpower, she says: after countless failed attempts, she finally quit. However, her success at giving up is also a striking result of a contentious corporate experiment. What finally prodded her into her decision was a fear that her habit might threaten her employment. “I wanted to keep my job more than I wanted to smoke cigarettes,” says Battle.
The Cleveland Clinic, where Battle works as a health unit coordinator, has been a leader in corporate anti-smoking initiatives. It first banned smoking on its 170-acre campus in 2008, and followed that up with a new policy to chemically screen job applicants for nicotine and refuse employment to those who test positive. Workers such as Battle who were on staff before the ban would not be fired for smoking in their free time, but she could see the culture changing.
“Being a health care worker is setting an example,” says Dr. Bruce Rogen, the chief medical officer of the Cleveland Clinic’s employee health plan. Since instituting the ban, and offering free smoking-cessation programs to employees, Rogen says hundreds of people at the clinic have quit.
Only 21 U.S. states (including Ohio, where the clinic is based) allow companies to exclude smokers from their workforce outright. And in those areas this sort of policy has become the norm in the health care sector, says Rogen. Now the practice is spreading, and companies in other industries are implementing similar policies.
YOUR OFF-THE-JOB BEHAVIOR SHOULD HAVE NO BEARING ON YOUR EMPLOYMENT.
DALE EWART, 1199SEIU UNITED HEALTHCARE WORKERS EAST
This delights anti-smoking activists. However, it has led civil liberties advocates to sound alarms about employers’ creeping control over workers’ lives even when they are off the clock.
U-Haul, an Arizona-based moving company with about 30,000 workers, this month became one of the country’s largest employers to stop hiring nicotine users — a term that includes not just smokers but users of “nicotine products.” This potentially covers people who test positive for nicotine because they are trying to give up smoking using vaping, gum or patches.
Like the Cleveland Clinic, U-Haul will allow those hired before the restriction to keep their jobs. And the hiring ban will only apply in the same 21 states.
However, should a U.S. company choose to fire any workers who use nicotine, the employees would have little recourse, depending on where they work. Smokers are not a “protected class” safeguarded by federal law, such as racial minorities or people with disabilities. That means in “at-will” employment states, a capricious boss can fire an employee for practically any reason, whether that is smoking off-duty or something as arbitrary as wearing the wrong color shirt to work.
“How far do the employer’s rights [to fire someone] go? It’s pretty much fair game unless the state prohibits it,” says Cathleen Scott, a Florida-based employment lawyer. “[A worker’s] choice is to take it or leave.”
The states that do not allow companies to ban nicotine users often prohibit discrimination against “legal off-duty conduct,” says Karen Buesing, an employment law specialist at Akerman. But the extent of the protections can vary.
Only a handful of employment cases over off-duty nicotine use have made it to court, but employment lawyers believe there could be ways to get these bans made illegal. “[Off-duty] smoking bans have not been litigated sufficiently for the public to have a grasp as to whether [they are] enforceable,” says Daniel Gwinn, an employment lawyer in Michigan.
As for U-Haul, the company says its new anti-nicotine policy is part of its commitment to employee “wellness,” but there are also clear financial motives at work. In the U.S., where health insurance is typically provided by employers, companies pay more for health coverage if their workforce includes a lot of smokers, says Buesing.
About one in every four companies with more than 500 employees offers nonsmokers a reduced rate on their health care premiums, says Steven Noeldner, partner at consultancy Mercer.
Yet off-duty smoking bans are only one type of potentially invasive “wellness” programs offered by companies. So-called “fitness contests” are growing increasingly common, where employees use step counters or other tracking devices to prove how active they are in exchange for a discount on their health insurance.
These programs are perfectly legal, as long as they are structured correctly, but companies can get into trouble if the devices they use track more than just an employees’ steps, says Buesing. Many companies are implementing intrusive programs — such as tracking workers’ locations via company-issued mobile phones.
“Technology is creating new ways to track and monitor employees,” says Brian Kropp, chief of human resources research at Gartner, a corporate technology consultancy. Companies often scrape employees’ web browsing history and monitor what they write and say on company equipment, he says. Others go even further. Some employers even turn on workers’ webcams and use facial-recognition software to gauge their sentiment about their jobs.
“What companies are truly struggling with … is that they have not thought through the ethical [ramifications of their] decisions,” says Kropp. U-Haul’s management is decreasing its health insurance costs, but they are also making a statement about what they believe are appropriate behaviors for society to participate in, he says.
These practices do not typically go down well with workers’ rights advocates. “There was a time when employers used to make sure their employees went to church and didn’t drink,” says Dale Ewart, who heads the Florida operations of labor union 1199SEIU United Healthcare Workers East. “No one wants to live like that. Your off-the-job behavior should have no bearing on your employment.”
Still, Gartner’s research shows a growing level of acquiescence to employer surveillance, thanks to the growth of digital surveillance in people’s day-to-day lives by companies such as Amazon and Facebook.
And this can also be the case with smoking bans. Battle, from the Cleveland Clinic, initially held a negative view of her company’s smoking policy. Eight years later, she feels differently. “After I quit, I was glad they did it,” she says. “I am happy those cigarettes are out of my life.”