Our healthcare premiums have gone through the roof (whose haven’t?), and management is putting pressure on me to get the costs down. They think we can have an impact by establishing health criteria to screen out applicants who will be likely to have high health bills, e.g., smokers, those who are overweight and/or have high blood pressure, and those with poor attendance records. What legal issues would such a policy raise? —Edward T., Staffing Manager, Ontario
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Virtually all employers that provide health insurance as an employee benefit are concerned about the high cost of insurance premiums and sincerely desire to reduce premium costs so that they can continue to provide this important benefit to employees. However, employers must take care not to run afoul of federal and state disability discrimination laws if, as suggested by Edward’s higher-ups, they attempt to screen out applicants who will likely have high health bills, for example, smokers, those who are overweight and/or have high blood pressure, and those with poor attendance records.
Both the federal Americans with Disabilities Act (the ADA, which applies to employers with 15 or more employees) and the California Fair Employment and Housing Act (the FEHA, which applies to employers with 5 or more employees) prohibit discrimination against disabled applicants and employees. These laws prohibit asking whether an applicant is disabled or asking questions that are likely to elicit information about a disability.
The U.S. Equal Employment Opportunity Commission, which enforces the ADA, and the California Fair Employment and Housing Commission, which enforces the FEHA, have issued guidance on permissible and impermissible preemployment questions. They say you can ask questions about an applicant’s ability to perform job-related functions. For instance, if the job requires the employee to work 9 to 5, Monday through Friday, the employer may ask the candidate whether he or she will be able to meet these attendance requirements. On the other hand, the FEHA prohibits questions about prior workers’ compensation claims (and thus asking about attendance issues related to such claims should be avoided).
Further, questions about an applicant’s general health or medical conditions that may tend to elicit information about a covered disability will be found unlawful. For instance, the California Supreme Court has ruled that high blood pressure is a covered disability, whether the individual is presently disabled by high blood pressure or may become disabled in the future. Accordingly, employers must not ask applicants questions about whether they have high blood pressure. In another case, the California Supreme Court held that obesity, in and of itself, is not a covered disability. However, the high court left open the possibility that obesity caused by a systemic physical condition will be a covered disability. Thus, if an employer rejects all “overweight” applicants as Edward’s management suggests, this policy or practice may have a discriminatory impact on disabled applicants with a systemic physical condition that causes obesity.
Lastly, smoking is not a protected activity in California and is increasingly disfavored (for example, employers must prohibit smoking indoors). Accordingly, asking an applicant whether he or she smokes as a prelude to explaining the employer’s rules regarding smoking may be lawful. On the other hand, asking whether the applicant smokes to screen out applicants in poor health, as suggested in Edward’s question, may have a discriminatory impact on applicants with a smoking-related disability, such as asthma or lung cancer.
In sum, while it may be a worthwhile and lawful effort for employers to promote a healthy workforce by discouraging smoking, encouraging weight loss, etc., efforts to screen out applicants who smoke, have high blood pressure, are overweight, or have poor attendance may trigger disability discrimination claims. Accordingly, any such screening measures must be carefully thought out and applied to prevent legal exposure.
—Allen M. Kato, Esq., is an associate at the San Francisco office of the law firm Fenwick & West LLP.