Life at Work

So Much for 'Personal' Habits

By Amy Joyce
Washington Post Staff Writer
Sunday, October 15, 2006

Your employer probably hasn't bugged your apartment to determine if your television viewing is up to par.

But that doesn't mean that your life outside of work can't affect your hiring, firing or promotions.

In many states, it is legal to hire, fire or promote based on what a company finds out about you in your nonwork world.

That includes smoking, even during off-work hours.

Weyco Inc., an employee benefits firm in Okemos, Mich., started nicotine testing with its employees last year. It instituted a policy that makes it a firing offense to smoke, even off the premises, outside work hours. It stopped hiring smokers in 2003, and last year it fired several employees who refused to take a nicotine test.

More recently, the company expanded the policy to spouses of its 175 employees. If the spouses test positive for nicotine in monthly tests, the employee must pay an $80 monthly fee until the spouse takes a smoking cessation class and tests nicotine-free. Employees are subject to random tests, a policy that according to Howard Weyers, president of Weyco, has cost "a few people" their job. Employees who come up positive for nicotine in a random test are sent home for a month with no pay. If they test positive a second time, they are fired.

"It's strictly for prevention, and this is the right thing to do," Weyers said. "Everybody knows that the use of tobacco will create a medical episode."

Anita Epolito worked for Weyco for 15 years when she was fired for refusing the test in 2005. "This is about privacy," she said. "If you failed the blow test, you had to take a urine test. It was so demeaning."

She thought what the company did was illegal but soon found out that because Michigan is an at-will state, she could be fired for any reason, even for something she did in her off-hours.

However, there is some wrangling about the legality of firing people for off-the-job behavior. In fact, 30 states and the District have statutes that limit an employer's ability to make decisions about an employee based on off-duty activities, according to Susan K. Lessack, a partner in employment and labor law at Pepper Hamilton LLP. Some statutes apply only to public-sector employees.

"We were surprised that there hasn't been litigation out of that as far as we know," Lessack said about people who were fired for smoking. "I think it's probably legal but subject to challenges from employees."

Lewis Maltby of the National Workrights Institute calls it "lifestyle discrimination."

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