Wednesday, November 3, 2010

Nanny Employer or Public Health Leader?

The Massachusetts Hospital Association announced yesterday that as of January 1, tobacco users will not be eligible for employment. The blogosphere responded quickly. "Big Brother," "totalitarianism," and "fascism" were among the terms applied to the MHA policy.

Apart from fiery rhetoric, the most persuasive critique of what the MHA is doing is the "slippery slope" argument. Even those who favor high tobacco taxes and other preventive messages worry about the potential for employers to develop hiring policies that reflect prejudice, not public health. (In the 1980s, Electronic Data Systems banned facial hair and fired an employee who claimed that he wore a beard for religious reasons!)

In my view, it is entirely justifiable for a health organization to do what the MHA is doing. I formed this opinion as a fourth year medicine student on a medicine rotation at the Boston City Hospital. A man in his 50s died of lung cancer. I joined the resident in meeting with the family. As would be unthinkable now but was not so shocking in the 1960s, the resident was holding a cigarette. The widow was outraged - "How can you talk to me about my husband's death and smoke cigarettes yourself?" Of course she was right. It would be hypocritical at best for the MHA to preach public health without taking a strong stand against tobacco use.

But what about organizations not in the health sector? Banning smoking on the premises is justified by the risks second hand smoke poses to fellow employees. But not hiring smokers is problematic. The policy would contribute to anti-tobacco pressure, but it would have greater impact on low income workers, since tobacco use is more prevalent in low income groups. And it would fly in the face of the strong value Americans place on individual liberty.

In principle, further increases in tobacco taxes would be a preferable approach. Price increases lead established smokers to cessation efforts, reduce the rate of smoking, and discourage adolescents from initiating tobacco use. Critics, including tobacco company lobbyists, are correct in arguing that "sin taxes" are regressive - the poor pay proportionally more than the wealthy. But since there are more low income smokers, the relatively larger number who quit will, over time, make the tax less regressive. And, as a practical matter, determined low income smokers generally have access to lower cost black market products.

But we are likely to see non-health organizations following organizations like the MHA (or the Cleveland Clinic, which instituted a non-hiring policy in 2007), driven by concern about health care costs. Employers will justify the policy by (1) public health values but also (2) the potential that reducing (and ultimately eliminating) smoking among employees has to lower insurance costs for the company. Insofar as health care costs come out of wages, my liberty to smoke comes out of my fellow employee's paycheck. As I argued in a previous post, my liberty right to smoke if it's legal doesn't give me the right to lower your pay.


HollyAZRN said...

Just found and started reading your blog. Obviously much thought goes into your posts and this whole subject concerns me not only as a nurse myself, but as it should all Americans facing major changes to health care access and quality.

My first question after reading Nov 3rd's blog:
If you substitute other obvious risky conditions (e.g. obesity) or habits, such as high-fat or otherwise poor diet, excessive alcohol use, or any other common unhealthy practice, for your example of tobacco use, by your logic, it seems to me that the employer in your scenario would also have to have policies prohibiting hiring of those folks as well, would it not? This would be because all other employees are paying the health care costs of those people who have any unhealthy practice in their lives. The next question is how would this be policed? And then a whole host of questions ensue.

Thanks for your consideration on this dimension of the ideas put forth in your last blog post.

Ken Kleinman said...

Jim, I don't think the type of organization is relevant to what it ought to be allowed to do. As much as a healthcare organization might be more _interested_ in the health-related activities of its employees, is has no more right to interfere with the off-hours activities of its employees. (On the job activities are a different story, and a hospital should be allowed to ban smoking even absent second-hand exposure concerns.)

And that's what the MHA is doing, no doubt about it. The "slippery slope" argument is not just about prejudices, as you correctly note, but about individual freedoms to do prejudice-neutral things. Can you also refuse to hire motorcycle riders? Habitual speeders? Frequent travellers? People who don't wash their hands as often as you'd like? I think these all pass your implied tests for public health value and reduced insurance costs.

And if you also allow people to be fired for taking up risky activities after being hired, the potential for a nanny-police state is not just rhetorical. Anyone with evidence you did something risky would hold the option to get you fired.

Jim Sabin said...

Hi Holly and Ken -

Thank you for your comments. You've raised important issues!

Holly - welcome to the blog. I hope you'll return, and comment again. All of the conditions you cite have relevance to health, but in my view they're not as clear cut as smoking. Sadly, a healthier diet is usually more costly. Our economy gives hard working low income folks a perverse incentive to seek out high calorie/low cost foods. And "excessive alcohol use" is difficult to define, whereas the question of whether I smoke or not is black and white.

Ken - I don't agree that employers "have no right to interfere with the off-houors activities of its employees." As a real-world example, "behavior" of employees on Facebook during their off-hours may be incompatible with the mission of the organization, as when physicians write about drug use and casual sex. They have a right to publicize their behaviors, but a group practice committed to cultivating trust with its patients isn't going to be happy, and shouldn't be.

I agree with both of you that the "policing" problem is serious and could be destructive. I'm not an expert on HR policies, but my guess is that thoughtful HR folks could craft approaches that discourage destructive forms of "policing."

"Individual freedoms" are the heart of our political system, but in my view they don't automatically trump all other values. I'm free to smoke if I want. But I don't have a right to employment at the Massachusetts Hospital Association. And I'm free to write what I want on Facebook when I get home at night. But my colleagues in a group medical practice have a right to can me for behavior inconsistent with group values.

Again, THANK YOU for your thoughtful comments. This isn't an easy area. I hope we see wide and comparably thoughtful public debate!



HollyAZRN said...

Well, Ken, we are on the same page. Yes, of course the hospital can implement and enforce certain policies on their own campuses, and they do.

A "nanny-state" scenario is utterly undesirable, and second concerning what we've talked about here such policies are impossible to enforce and any aspect that one could try enforcing could not be done without violation of people's rights.

Smart employers make sure they do smart hiring!

Jim, that's how I see it and it aligns with the American value system. I just gave several examples but could give hundreds. I do think one's eating and drinking and behavior habits are really just as black and white as smoking. They are just harder for you to measure and control. In your post you are speaking to the unfairness of other employees having to pay for the smoker's habit. Well, those same employees who eat right and have no bad habits are paying for all those who have poor diets, don't exercise, and on and on and on.

Wherever I have worked there were policies to which I had to sign agreement to uphold, and my employment was conditional on my doing so. Also, every employer I have had has abided the"At will" law wherein the employer or employee may terminate the working relationship at will for no cause at all. (There are certain exceptions dependent on certain contract agreements, any violation of discrimation laws, etc.)

So, we're back to the fact that it is incumbent on the employer, wanting to have healthy employees, to screen to the best of their legal ability in their hiring practice. Note: I don't know that employers during the hiring process can legally even ask the employee if he smokes, drinks, eats Mickie-D's, or anything. And my husband has done a lot of hiring interviews and was under strict instructions not to ask such questions. I have never been asked such questions. I have, however, had to pass a basic physical.

Would I LIKE for everybody to do healthy activities and have healthy habits.... of course. But, personally I could never get behind any movement that would infringe on people's rights.



Jim Sabin said...

Hi Holly -

Thank you for your further comment. I'm sorry for the delay in posting it and responding - I've been away from the blog for a few days.

You and Ken make a strong case against the position I've taken. You're certainly correct that our culture is VERY strongly oriented towards individuals taking responsibility for themselves and their right to act as they wish.

In a previous post, and in the article it summarized, I used the movie "Shane" as a piece of cultural data to argue that in addition to our centuries long passion for individual responsibility and individual rights (as in Patrick Henry's "give me liberty or give me death"), we have a parallel tradition of responsibility to our communities, as represented in the frontier tradition of collaborative barn-raising.

You and Ken make an especially strong "slippery slope" argument about where corporate "intrusiveness" will stop, and how lines would be drawn. And I agree that if we turn workplace colleagues into smoking, eating and drinking police we will have created a nightmare.

I see the issue as analagous to the clinical issue of side effects and risks. Every intervention has downsides. Sometimes these outweigh the benefits so strongly that the intervention shouldn't be carried out. But sometimes the benefits are important, and the right response is to see if we can reduce the risks enough to warrant making the intervention.

That's how I see the Massachusetts Hospital Association policy - risky, but with the potential for managing the undesirable "side effects."

Again, thank you for the thoughtful, strong comments!