Scotts LawnService hired Scott Rodrigues to treat Sagamore Beach, Mass., lawns with chemicals in the summer of 2006, on the condition he pass drug- and nicotine-screening tests. About six months earlier, the company had banned employees from smoking cigarettes anytime or anywhere. Scotts fired Rodrigues when his test came back positive for nicotine, even though he never smoked at work.
Rodrigues sued Scotts in January 2007, seeking compensatory and punitive damages for alleged violations of his privacy and civil rights and a permanent injunction barring Scotts from terminating employees for smoking outside of working hours. The pending suit pits employees' right to engage in off-the-job conduct that is legal but carries health risks against employers' business interest in a healthy workforce.
The rules try to strike a balance between allowing employers to offer incentives and protecting employees unable to meet such requirements from losing their benefits. Thus, the rules specify that if the reward for meeting a health standard is a reduction in the employee's cost for health insurance, that reduction must not exceed 20 percent of what the employee would otherwise pay for coverage. They also require employers to offer alternatives for those who have a physical limitation that prevents them from meeting the standard.
Announced in December, the final HIPAA rules tweak and amplify interim rules that went into effect six years ago.
In unionized companies, National Labor Relations Board rulings require employers to bargain with unions on insurance plans, no-smoking policies and physical examinations. That means wellness programs that circumvent the bargaining process are ripe for litigation and grievances.
In fact, unionized firefighters in Taylor, Mich., filed one of the first court challenges to a wellness program in November 2004. The city of Taylor offered its firefighters free golf, ice skating and use of the city's other recreational facilities along with a health appraisal that included a mandatory blood draw to test cholesterol levels. The firefighters sued, claiming the blood draw violated their constitutional rights to be free from unreasonable searches and seizures. Their union filed a grievance saying the blood draws violated the collective bargaining agreement. The Federal District Court for the Eastern District of Michigan denied the city's motion for summary judgment in June 2006.