Even smokers have to admit that smoking increases the risk of health problems. And employers know that employees who smoke face a higher probability of using employer sponsored health insurance. While wellness programs educate and sometimes reward employees for making good lifestyle choices for themselves, what if an employer could go a step farther and just prohibit their employees from smoking.
This is a trend among hospitals and medical businesses in some states, to increase productivity and healthy living. In Illinois, that’s going overboard with a good idea. First of all, the Illinois Right to Privacy in the Workplace Act prohibits employers from taking any adverse action against an employee for engaging in lawful activities when not on work time. Obviously, that includes smoking and the Act prohibits any disciplinary action or negative action, like failure to promote an employee if they smoke off the employer’s premises during nonworking time. Remember, a lunch break, whether or not it’s paid, is nonworking time if the employee is free from any work responsibilities.
Secondly, how does an employer exactly monitor a no smoking rule during work hours? Does someone follow employees out on their lunch break to see if they’re secretly lighting up? Or smell them when they return from lunch? Clearly that’s not practical, and what is the sense in having a rule if you can’t or you’re simply just not going to enforce it? Thirdly, a no smoking rule runs the risk of bumping up against some ADA issues. Individuals being treated for addictions can be covered by the ADA.
What employers can do is control work premises. A prohibition on smoking anywhere on work premises, including employer owned parking areas is permissible and will address a great deal of the issue. It will certainly stop smoke breaks on the premises, by, depending on the location of the workplace, forcing an employee to get in his or her car and drive somewhere to have a quick smoke. Monitoring break times will deter that activity.
The Health Insurance Portability and Accountability Act (HIPAA) prohibits health plans from discriminating among plan participants based on a health factor. Generally, this means that plans cannot charge individuals different premiums or impose different costs based on health status, medical history, or claims experience. However, HIPAA provides an exception to this rule by permitting wellness programs that promote health and disease prevention, provided that certain requirements are met.
A wellness program that provides a "reward" based on a health factor (such as a reduced health insurance premium for not smoking) must satisfy each of the following four requirements:
- The reward cannot be more than 10-20% of the total cost of the coverage
- The program must be designed to promote health or prevent disease
- The program must be available to all similarly-situated participants
- A reasonable alternative must be available for individuals for whom it is unreasonably difficult to meet the standard or for whom it is medically inadvisable to attempt to meet the standard.
Additionally, employers can offer incentives or penalties to employees for participation in employer sponsored wellness programs, with certain limitations. This too, can encourage employees to focus on establishing and maintaining healthy habits.
