Publications: Illinois Employers Beware: Workplace Privacy Act Prohibits Lifestyle Habits Discrimination

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The recent decision of a Michigan-based medical benefits administrator (Weyco, Inc.) to fire workers who smoke has re-kindled a smoldering National debate over whether employers should interfere with employees’ lifestyle choices and behavior away from work, such as smoking and drinking alcohol. (“Company’s ‘no smokers’ policy generates some heat,” Chicago Daily Law Bulletin, February 9, 2005.) Civil libertarians have attacked the action as an inappropriate intrusion into employees’ personal choices and conduct outside the workplace. (“Company’s Smoking Ban Means Off-Hours, Too,” The New York Times, February 8, 2005.) The employer’s ban doesn’t just prohibit smoking during working hours, but makes employment unavailable to anyone who smokes anywhere. According to the National Workrights Institute, 21 states have enacted legislation to limit or prohibit such so-called “lifestyle discrimination.” While some laws generally ban discrimination based on workers’ legal activities or use of lawful products, others (for example Virginia’s) provide more limited safeguards to smokers alone.

Illinois employers, particularly those considering coercive efforts to influence employees’ health choices and lifestyle habits, should be aware that Illinois law prohibits discrimination based on employees’ use of lawful products. Illinois’ Right to Privacy in the Workplace Act, 820 ILCS 55/5, applies to employers of all sizes, and makes it “unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, or conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.”

The Illinois law does not apply to employees’ use of lawful products that impair their ability to perform assigned duties. As well, it exempts non-profit employers who have a primary purpose or objective to discourage the use of one or more lawful product.

Finally, Illinois’ Right to Privacy in the Workplace Act does not impede employers’ prerogatives to offer, impose or maintain health, disability or life insurance policies that make coverage type and/or price distinctions based on employees’ use of lawful products provided that different premium charges to employees mirror differential costs to the employer and employers furnish workers with a statement of the differential rates charged by their insurers.

The wisdom of employers’ influencing non-workplace conduct may be debatable. But the legality of discriminating against Illinois employees based on their use of lawful products is not. Such discrimination is prohibited.