the courts have never recognized nicotine addiction as a disability under the ADA, as set forth above certain states have definitions of disability different from the ADA. An individual might be able to successfully assert that nicotine addiction is a disability in those states since it is a diagnosable condition under the DSM-IV.
In order to minimize risk in seeking to eliminate applicants who could increase healthcare costs if hired, an employer with locations in multiple states should tailor its job applications to the state law risk, i.e., do not ask about use of tobacco in those states that prohibit discrimination against applicants for use of such products. Likewise, do not ask about height and weight in those states that present an increased risk of a claim or liability.
Myra Creighton is a partner in the law firm of Fisher & Phillips LLP, which limits its practice to representing management in labor and employment matters. She can be reached at 404.231.1400, via email at firstname.lastname@example.org or through the firm’s Web site, www.laborlawyers.com.
claim concerning morbid obesity based on the BMI, the applicant still would be required to show he either is substantially limited on a major life activity or that the company perceived him as such.
Generally, all the evidence would show is that the company perceived an impairment. Of course, the fact that the company would not have any actual knowledge of a substantial limitation further insulates it from liability under the ADA or similar state statutes.
Unfortunately, not all states have fair employment practices statutes that track the ADA’s definition of disability. California, New York, New Jersey, Connecticut, and Washington do not define a disabled person as one who has an impairment or condition that substantially limits a major life activity. For example, California requires only that an employee have a physiological disease, disorder, condition that affects one or more body systems or limits an employee’s ability to participate in a major life activity.
New Jersey defines a disabled person as one who “suffer[s] from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect, or illness . . . that either prevents the normal exercise of any bodily or mental function or which is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques” and its state supreme court has specifically upheld morbid obesity as meeting that statutory standard. New York, Washington, and Connecticut have similar laws.
Thus, the risk of an employee being able to demonstrate that he was rejected because of an actual or perceived disability, when he is rejected because he is overweight, increases in those states.
Even more stringently, Michigan specifically prohibits discrimination on the basis of height and weight and the District of Columbia prohibits appearance discrimination. Finally, the fair employment agencies in Ohio, Utah, Nevada, Washington, and West Virginia have pre-employment inquiry guidelines, which state that questions about an applicant’s height or weight on an application are unlawful unless height and weight are bona-fide occupational qualifications.
Of course, these agency guidelines are not laws, and all the forgoing states except Washington define disability the same way the ADA does. Therefore, the harm against which the agency seeks to protect is unclear. Nevertheless, a decision not to hire an applicant based on his weight and height in these jurisdictions could expose a company to a higher risk of liability.
Smoking imposes a real and not insignificant economic cost on employers through lost or decreased productivity and smokers’absenteeism rates. Studies have shown that smoking is the most common cause of preventable death and illness in the United States, so it’s no wonder that employers would prefer employees who do not smoke.
Although the ADA permits an employer to ask whether an applicant smokes or uses tobacco products, the following states prohibit employment discrimination against individuals who use tobacco products or who use lawful products outside work: Colorado, Connecticut, District of Columbia, Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota (termination prohibited), Tennessee, (termination prohibited), West Virginia, Wisconsin and Wyoming.
Hawaii’s House of Representatives has passed a law asking employers to respect employees’right to use lawful consumables off premises during non-work hours.
Thus, although a company may ask whether an applicant uses tobacco products, in certain states it risks liability if it rejects applicants because they use tobacco products.
Employer spending on health care continues to grow so many employers are focusing on hiring healthier employees. This article looks at some of the federal and state laws that affect decisions regarding who to hire based on health considerations.
In recent years most employer provided health plans have significantly raised employees’co-payments so that the amount of money employers spend on prescription medication has decreased. Nevertheless, employer spending on total health care still exceeds the rates of general inflation. Indeed, such spending increased 7.7% in 2006.
Given the continuing increase in employer spending it’s not surprising that employers are focusing on hiring healthy employees, wellness programs and on employer provided drug programs. Doing so is in employers’best interests from an economic and productivity standpoint. The question is when such programs may result in federal or state law claims against employers or their health care plans.
What’s Out There?
The first issue is to define the legal risks of eliminating job applicants who could potentially increase a company’s healthcare costs from consideration for employment without becoming a test case” in litigation. The two primary indicators that an applicant may eventually contribute to an increase in healthcare costs are smoking and obesity.
In order to determine whether an applicant uses tobacco products or is overweight/obese, a company would need to elicit that information on the application or visually note the weight issue. A number of laws such as the Americans with Disabilities Act (ADA) and state fair employment practices statutes potentially restrict an employer’s ability to reject such applicants.
Overweight Versus Obesity
The Americans with Disabilities Act (ADA) strictly prohibits an employer from making any “disability-related inquiries” at the pre-offer stage. A disability-related inquiry is one that is likely to elicit information about a disability. Under the ADA, a disability is an impairment that substantially limits a major life activity, a record of such an impairment, or the perception of such an impairment. By requiring an applicant to list his height and weight, an employer can calculate an applicant’s body mass index (BMI).
BMI is a useful tool in determining whether an applicant is overweight or obese, but it does not measure body fat. Thus, individuals who are lean and well-muscled may have the same elevated BMI as someone who carries too much body fat.
Also, although the BMI is not an absolute indicator of future or current health problems, it can be used with other information to predict if an individual is more likely to develop health problems. For example, the risk of a weight-related disease increases with the size of the applicant’s waist measurement (men & gt; 40 inches; women & gt; 35 inches). The issue is the legal risk that exists if an employer asks about an applicant’s height and weight on an application.
A question that seeks to determine whether an applicant is overweight is not a disability-related inquiry. And deciding not to hire an individual based on his weight presents minimal risk under the ADA and state laws that have similar definitions of disability.
Generally, weight is not an impairment. The EEOC’s ADA regulations specifically state “the term impairment does not include physical characteristics such as . . . weight,” and that “except in rare circumstances obesity is not considered a disabling impairment.”
In order for weight to be an impairment, the individual either must be morbidly obese, be perceived as such, or have a weight condition caused by a physiological disorder. But a company would not have a perception of or knowledge of a physiologically based weight disorder based on a BMI calculation. Although a company might be subject to a disability