Is Prohibiting Unhealthy Behaviour in the Workplace Unlawful?
We all know it is important to eat nutritious foods, exercise regularly, and avoid tobacco and excessive alcohol consumption to ensure health and well-being. Now, employers are realizing the economic benefits of healthy employees.
Unhealthy employees, including those who are ill, overweight and obese, and/or smokers, often have decreased productivity and more frequent absences. So it stands to reason that workplace costs increase when employees are unhealthy.
Using obesity as an example, a 1998 study in the Journal of Occupational and Environmental Medicine found that direct costs to employers only increase with a rising body mass index (BMI) after healthy weights. The data suggests employers attempt to modify behavior of employees with highest BMIs. These costs can be tremendously high, with one research study from 2010 finding costs can reach as high as $6087 USD for obese men and $6694 USD for obese women.
But obesity is not the only costly unhealthy behavior.
The Conference Board of Canada determined smokers cost employers an additional $4200 annually. These costs are primarily due to lost productivity occurring as a result of smoking breaks and absenteeism. It therefore makes economic sense to target employees’ health.
While healthy behaviours benefit individuals by preventing disease and promoting well-being, preferring healthy employees over smokers or people that are overweight does not give job applicants equal opportunities—and that is a problem.
For example, a Canadian company, Momentous Corp., does not hire smokers. Their online job posting explicitly states: “all candidates must be non-smokers.” It is not that smokers are prohibited from smoking during work hours, but rather they are forbade from smoking even when not working for fear of risking termination.
A major issue in this hiring practice is that it discriminates against smokers. While one can argue that this practice is only applicable to this employer, just like each job requires a certain skill set to attract a particular ‘type’ of candidate, what happens when this hiring practice is applied more uniformly?
In Japan, a national law requires companies and local governments to measure the waistlines of Japanese citizens aged 40 to 74 during annual check-ups.
Individuals exceeding government limits, 33.5 inches for men and 35.4 inches for women, will be provided dieting assistance if they do not lose enough weight three months after their check-up. After the six month period, these citizens will be provided with further health education if they do not meet these limits. Penalties are imposed on both local governments and companies whose employees do not meet the government waistline limits.
While this waistline restriction seeks to improve health outcomes, will it result in discriminatory hiring practices by employers who seek to avoid paying penalties for an employee’s waistline? What happens when these individuals are unable to find work because all companies reject their applications? The lost income and decreased sense of self-worth can have further implications for these individuals’ health and well-being.
“Prohibiting ‘unhealthy’ behaviour in the workplace could potentially be unlawful,” Professor Faisal Bhabha, an Associate Professor at Osgoode Hall Law School and Academic Director of the Anti-Discrimination Intensive Program, said.
“This is because employers generally should not interfere with the intimate personal choices of individual employees, including what individuals choose to do with their bodies. The potential for human rights violation arises if the directives about ‘health(y) living’ require an employee to do something that interferes with a protected ground under the Human Rights Code,” Bhabha explained.
Luckily, in Ontario, the Human Rights Code states: “every person has a right to equal treatment with respect to employment without discrimination or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability”. This applies across the spectrum of employment, from job applications to dismissal and layoffs.
However, Bhabha said, “[…] a rule that says employees must refrain from doing something could interfere with Code rights. For example, a ‘clean living’ rule that prohibits employees from consuming alcohol or marijuana could breach the human rights of an employee who is an alcoholic or one who is a medical marijuana user.”
However, Bhaba said that this analysis proceeds on the assumption that workers are performing to satisfactory standard.
“When an addiction or a medical need interferes with the performance of essential features of a job, then it’s a different analysis,” he said. “Individual employee autonomy is therefore a significant value in the law.”
“The Ontario Court of Appeal has ruled that mandatory drug testing in general is unlawful because among other things it interferes with the autonomy and privacy of individual workers, though in certain safety-sensitive positions it could be justifiable as long as the employer doesn’t deal in a heavy-handed manner.”
However, addictions may be a different story for employer-imposed rules prohibiting unhealthy behavior.
“The issue of the alcoholic or medical marijuana user gets more complicated if you’re only talking about in the workplace, but, even then, human rights law may require an employer to at least consider accommodating these practices if it would not be overly onerous,” he said.
“The same could be true for employees addicted to caffeine or even the internet (consider a workplace that bans cellphones everywhere, all the time, even employee breaks). In my research I’ve even found that users of online pornography or gambling (in the workplace) can in some instances be viewed as addicts, which can trigger human rights protections.”
While promoting better health and well-being in workplaces is a noble goal, if it results in discriminatory hiring practices, one should have cause for alarm.
In addition to this, employees engaging in health promoting behaviours involuntarily raises an entirely different set of problems.
The World Health Organization defines the core belief of health promotion as “the process of enabling people to increase control over, and to improve, their health”. Therefore it is possible that individuals may appear healthy by engaging in health promoting behaviours but lack control over their health.
In the Japanese example, forcing citizens to simply ‘lose weight’ does not consider other factors. Most notably, these restrictions ignore how in healthy BMI measures height plays into weight. Additionally, forced weight loss could encourage unsustainable temporary weight loss instead of long-term muscle building and physical training, which could result in a waistline exceeding government-imposed restrictions. Another consideration to keep in mind is the well-being of those individuals who are in fact overweight or struggling with obesity. They are ostracized throughout the check-up process–nurses compare them to smokers and view them ‘disapprovingly’. The criticism these individuals face can negatively impact their self-esteem and, as a result, their overall well-being.
While health and well-being is an important feat to tackle, the role of employers needs to be reevaluated. And part of this role is the employer’s motivation.
“I would be concerned if it’s a decision motivated primarily by financial considerations including pressure from insurance companies, whose entire business model is based on paying as little as possible for its customers’ health related needs, threatening rising premiums and penalties for risk factors,” Bhaba said.
If the goal is to have employees engage in healthful behaviours, a critical evaluation of how these behaviours are being encouraged needs to occur. Instead of imposing restrictions on smoking behaviour or waistlines, employers should move towards working with the employee to understand the factors that influence their lifestyle, since many health behaviours are related to other social determinants of health, such as income.
Ostracizing and isolating employees will do little to improve their health and well-being, and, it does little to improve productivity and save money. Working towards achieving voluntary behaviour change is crucial for attaining cost-savings at the employer-level. But more importantly, mandating engagement in healthy behaviours can result in discriminatory hiring practices that contradict the Ontario Human Rights Code, and these practices should be considered unlawful.
Michelle Amri is a Policy Analyst with the Ontario Public Service. She is a contributor to Juris Diction. The views expressed in this article are the author’s alone and do not represent the views of her employer.