Thursday, October 27, 2005

Health Care Marketplace

Wall Street Journal Examines Legality of Wal-Mart Proposal To Discourage Unhealthy Job Applicants To Reduce Health Care Costs

      The Wall Street Journal on Thursday examined how a recommendation in an internal Wal-Mart memo that the company discourage unhealthy job applicants to reduce health care costs "raises questions about how far employers can legally go in preferential hiring" (Zimmerman et al., Wall Street Journal, 10/27). In a memo sent to members of the Wal-Mart board of directors, M. Susan Chambers -- executive vice president for benefits at Wal-Mart -- wrote that the company should discourage unhealthy job applicants to help reduce health care costs, among other recommendations. Chambers wrote, "It will be far easier to attract and retain a healthier work force than it will be to change behaviors in an existing one." The memo recommends that Wal-Mart require "all jobs to include some physical activity (e.g., all cashiers do some cart gathering)" to "dissuade unhealthy people from coming to work at Wal-Mart" (Kaiser Daily Health Policy Report, 10/26).

Legal Questions
The federal Americans With Disabilities Act mandates that employers cannot discriminate against job applicants based on race, age or disabilities, but whether they "can screen out other groups -- say, the obese -- is more of a gray area," the Journal reports. Jennifer Rubin, an employment attorney at Mintz Levin, said that obese individuals in some cases might have protection under ADA. "If an employer reaches a conclusion that they are not going to hire an applicant because they perceive that the applicant is unhealthy or old, it is a potential violation of federal and state laws," Rubin said, adding, "It is a danger zone when you start depending on stereotyping." Andrew Stern, president of the Service Employees International Union, said that the Wal-Mart memo "steps over the line of what's legal," adding, "When you add physical requirements to jobs that don't need them, you begin to weed out a whole pool of people, such as the elderly, the obese, people with pre-existing medical conditions." However, Gerry Shea, president for government affairs at AFL-CIO, said that the addition of physical labor requirements to job descriptions to discourage unhealthy or older applicants "isn't illegal." According to the Journal, employers can ask job applicants about their activities outside of work. For example, job applicants "who respond that they love sitting at home reading books could legally receive preference over those who say they enjoy ... extreme sports that present more of a risk in terms of health insurance claims," the Journal reports. Chambers said that Wal-Mart seeks to encourage a healthier work force rather than discourage unhealthy job applicants (Wall Street Journal, 10/27).