Employers Charge “Tobacco Use” Fees, but are they Legal?

It's bad enough that cigarettes cost upwards of $10 a pack in some cities.  Soon, your smoking habit could cost you $3,000 a year in extra health insurance premiums.

If the punitive measures hold up in court.

But the law — finally — might be on the smokers' side.  Plans by CVS and other companies to charge employees who don't conform to wellness plan standards could be illegal, an NBC report says.

And, based on a recent study, you might demand that your boss pay all or part of your health insurance premiums.  Bad bosses contribute to job burnout, a condition more hazardous to your health than smoking, researchers say.

The Pain in Maine

You've probably heard about the CVS plan to charge employees $50 a month if they didn't “volunteer” to submit to a weigh-in and blood test.  The controversial plan offended chubby clerks and anyone who didn't think his employer had a right to penalize him for legal lifestyle choices.

But you may not know that some smokers in Maine pay an annual $1,200 “tobacco fee” to their employer's health plan.  About 700 smokers at MaineHealth group are forced to pay the penalty, which is equal to 20 percent of their annual health premiums, writes Amy Langfield, a contributor to NBC News.  The extra health care premiums for smokers at MaineHealth is scheduled to rise to 50 percent — or $3,000 — of their annual premiums, based on current health care costs of about $6,000.

The “tobacco fee” is charged to employees whose urine tests come back positive for tobacco use.  Smokers who switch to electronic cigarettes may escape the fee.  Electronic cigarettes, although regulated as a tobacco product, do not contain tobacco.   They contain a combination of nicotine, flavoring, propylene glycol and water.

Fees, such as the ones charged by MaineHealth and CVS may face legal challenges. Laws regarding charging employees for their lifestyle choices are in conflict.

On one hand, the Health Insurance Portability and Accountability act (HIPAA) allows companies to create incentives (or penalties) in determining how much they'll deduct from an employee's paycheck to help pay insurance premiums.  On the other, the Americans with Disabilities Act (ADA) clearly says that employees cannot be required to reveal any information about their health.

By the ADA standards, it would be illegal to force employees to step on a scale or submit to tobacco-testing urine samples under threat of paying a monetary fine.

Given the high cost of health insurance premiums, expect more and more companies to follow MaineHealth's lead — until or unless a judge stops them.

Bad Boss Tax

Based on the logic of  MaineHealth's “tobacco use” fee, difficult supervisors should also be penalized for their behavior.  They should have to contribute to the health insurance costs for inflicting unhealthy stress on workers.

Work-related stress is more damaging to your heart health than smoking, a study of more than 8,000 people found.

In an article titled, “Your Job Might be Killing You,” Fortune contributor Anne Fisher cited findings that said dissatisfied workers are 79 percent more likely to suffer from heart disease than those in jobs they find satisfying.

Job unhappiness is not always an employer's fault, but if you're working for a crazy, oppressive or just plain mean boss, you might want to show him this the next time he complains about your smoking habit:

Job burnout is “a stronger predictor of coronary heart disease than many other known risk factors, including blood lipid levels, physical activity and smoking,” a researcher at Tel Aviv University, said in the Fortune interview.

Toker, lead author of the study published in Psychosomatic Medicine,  said moderate levels of job burnout increased the risk of heart disease by 40 percent.  Study participants with the highest levels suffered a 79 percent increase.

Signs that your job may be more hazardous to your health than smoking include these:

1.  You often feel like it's a struggle to go to work in the morning.

2.  You frequently feel physically drained.

3.  You have difficulty concentrating.

4.  You struggle to contemplate complex work problems.

5.  You feel emotionally detached from the people or customers at work

If two or more of the above factors affect you, you may be a candidate for a heart attack.  Or a candidate for a new job.