Experts Concerned Employee Smoking Bans Will Lead to Intrusions

Schwoeble says ACH is sensitive to the notion of infringing upon employees' off-duty rights to engage in legal activities.

"I wouldn't be truthful if I said it never crossed our minds, but to me it is not an issue," he says. "Our intent is to employ the individuals who care the most about their health to begin with and model their behavior to the families and patients that come here. These candidates aren't our employees to begin with. We are just screening the candidates who are coming in the door."

Schwoeble says ACH has no plans to expand applicant or employee screens for "body mass index or diet or anything like that. Wellness is a huge initiative that our CEO [William H. Considine] is 100% behind. It's not to say it would never happen, but there is nothing in the foreseeable future that is in the planning stages to do that," he says.

Attorney Jacqueline B. Jones, a partner at the Syracuse, NY-based MacKenzie Hughes LLP, and a specialist in labor discrimination issues, says 29 states—including New York —have laws in place that protect smokers' off-duty rights. The laws were enacted after lobbying by the tobacco industry, she says.

Without similar state laws in place, Jones says it's likely that employer intrusions into employees' personal habits will grow. "There is a lot of talk in the labor employment arena about protecting folks who are overweight, protecting them against discrimination in the workplace. So, I suspect that we will see legislation to protect folks that are overweight," she says.

"You will definitely see more employers trying to encourage employees to be healthier, but in a way that is lawful," such as providing access to weight loss and smoking cessation programs, Jones says.

Maltby says hobbies could soon come under scrutiny. "If your boss is going to get exercised about your smoking at home, they aren't going to be thrilled about the motorcycle you ride," he says. "We've already seen a few companies say 'no motorcycles, no skydiving, none of that stuff.'"

Maltby says an employee's most-personal lifestyle could come into question.

"The problem is there isn't much in your personal life that doesn't affect medical costs, including your sex life, Sexually transmitted diseases are expensive, particularly HIV," he says. "Will employers go after sex life? There is no logical reason—in principle—why they shouldn't because there is money involved. Will they do it? Maybe not. Will they come after people with diet and exercise? Of course they will. That is why we see 1,000 wellness programs pop up every day."