Some employers are showing signs of agreement with this theory. It started a few years back with self-imposed bans on smoking in the workplace. Whether a response to the complaints of non-smokers, an action designed to keep buildings from “getting sick” or an actual attempt to force workers to stop smoking, the first step toward employer-mandated personal health habits was underway.

Since then, many employers across the country have undertaken a myriad of programs designed at improving employee health. In most instances, employers have offered programs with voluntary participation options, such as wellness, smoking cessation or exercise. But recently, employers have increasingly been looking at or taking action to require their employees to take better care of their health.

The focus is apparently geared toward the theory that healthy employees are happy employees and happy employees are more productive and less expensive to have on the payroll. Apparently internal statistics are supporting this theory--so much so that some employers are tying the health habits of their employees to the employee’s share of their monthly health insurance premiums in much the same manner that self-insured people see higher premiums in certain cases (as with smokers).

Many employers are not racing that far down the path initially, but they are initiating wellness programs designed to educate employees about health issues. The next logical step is mandatory participation or the prospect of higher premiums. This is the “choice” employees of the future may be called upon to make if initial forays show signs of success. It is at this point a valid exercise of an employer’s discretion.

However, and there always is a “however” with the law, an employer cannot establish such requirements if the intent, or perhaps even unintended result, is to actually discriminate against employees who do not or cannot participate.

This is a very fine line to say the least, and the gray areas will continue to expand as employers move forward. Challenges based on discrimination, violations of privacy and all manner of alleged federal statutory violations are sure to come from these early days.

Federal law as it currently exists does not go far enough to prevent a decision to not hire an individual because he or she is a smoker. Federal discrimination statutes are geared toward factors such as race, age, gender, origin, religion or disability. Many of these are matters over which we have no control and thus our society, through enactment of legislation, has determined that one ought not be discriminated against because of them.

But many aspects of our private lives are not protected, and certainly private choices that we make that may affect our employer are often unprotected (i.e., political affiliation, cross dressing). Our health habits, absent state law protection (just starting to be discussed in many states), generally fall into the latter category.