The controversy erupted when Weyco Inc., a health benefits administrator in Okemos, MI, adopted a policy Jan. 1 that allows employees to be fired if they smoke, even if the smoking happens after business hours or at home. Company founder Howard Weyers says the anti-smoking rules were designed to shield the firm from high health care costs.

Legal experts believe the message that can be drawn from the Michigan case for any size business is they should consider their policy very, very carefully based on how it's perceived by people they're depending on as well as the public.

"You may have a strong feeling and strong justification at hunting the smokers in the workplace but the employer needs to do a careful, practical analysis in addition to a legal analysis of the fallout that may occur," said Peter Petesch, an attorney with the Washington, D.C.-based law firm of Ford & Harrison LLP, which specializes in labor and employment law and employment litigation.

Ironically, it's in the small business sector where companies seem to have a better chance of implementing employment policies such as the anti-smoking rules put in place by Weyco.

"Small businesses tend to be more personality driven," Petesch said. "If the owner has a strong bent against smoking it's more likely to occur in a small business."

A dividing line between work, leisure time

Michigan State Senator Virg Bernero, D-Lansing, explained that he's seeing more attention paid to employees' lifestyles by employers these days and generally that's being done in a positive, cajoling way rather than in a heavy-handed manner. He cited the example of Shell Oil Company that has instituted a policy of promoting healthy weight limits for its employees by offering a bonus of up to $1,000 for employees who reach their ideal body weight.

"The employer deserves an honest day's work for an honest wage but when you check out the issue with Weyco it isn't really about smoking," said Bernero. "It's the right of workers to have a private life and to engage in legal activities in an unfettered way -- that's the American way. That's what's enshrined in the Declaration of Independence -- life, liberty and the pursuit of happiness. To think that an employer is going to reach out into the private life of an employee is over the top. I think it's gone too far."

So far, the mail he's received on this issue is running 80/20 in favor of doing something to protect workers. The case has even drawn international interest as companies and workers across the board are "waiting to see if Weyco gets away with this."

For Bernero, the key issue is how much control is there on an employee's private time? He insists that there should be "a clear, bright line between work time and leisure time."

Recently Bernero was stopped at an airport by a mid-level manager who told him he was a little uncomfortable with his company's increasingly heavy-handed intervention in his health.

"He says the annual surveys are voluntary but there's increasing pressure from his superiors," Bernero said. "He feels that not participating is not an option."

Wrestling with workplace issues

Joe Crossney, Fiducial's director of systems support and development, observed that if an employer wants to strongly discourage employees from smoking for health insurance reasons that's one thing but they cannot use this as a reason to fire those who already smoke.

"It's not a terminable offense," he said.

Meredith Lindenmann, Fiducial's human resource manager, says that if the company adopted a smoking cessation program for its employees it would not be to restrict the employees' right to smoke but instead to reward their efforts in trying to break the habit. The same principle would apply if the company had a weight loss program to promote healthier lifestyles.

"We have more of a laissez-faire approach," said Lindenmann. "We don't want to be like Big Brother."

Smoking is, of course, just one of many workplace issues that companies have to wrestle with everyday. Some businesses are also concerned about the effects of workplace romance and moonlighting. According to some estimates, 20 million workplace romances are developing nationwide right now. Earlier this week, Boeing, the world's leading aerospace company, said its board of directors forced out its president and chief executive officer because of a relationship with a female executive at the company. The board determined the relationship violated the company's code of conduct.

Companies often frown on employees dating each other since who they date can become a conflict of interest, especially if it's a subordinate. Then there's the matter of sexual harassment issues that can come into play. Yet with the existence of all these workplace concerns it's becoming more and more difficult for some companies to make decisions from an employer's standpoint.

"There are so many restrictions as to what you can and cannot do," Lindenmann said. "Fiducial doesn't have any policies or any restrictions on what employees do outside of the workplace but we wouldn't allow moonlighting. If you were a bookkeeper for a competitor, that would be restricted."

Been down this road before

But the Michigan case isn't the first of its kind to test the waters for employers.

Ford & Harrison's Petesch revealed that this type of phenomenon has actually been occurring for some time. In the early 1980s he noted that a media company ushered in the advent of drug testing in the workplace. Despite objections from employees and those applying for positions, the distinction was made that drug use is illegal and drug testing eventually became more of an accepted screening procedure.

Regarding the Michigan company, Petesch indicated that the general consensus has been that the move "was perfectly legal under the doctrine of at-will employment since smokers in the state were not a protected class."

Some 29 states have enacted smoker's rights laws that prohibit employers from requiring employees to abstain from the use of tobacco products outside the course of employment or discriminating against job applicants or employees based on their off-duty use of tobacco or other lawful products, according to the Alexandria, VA-based Society for Human Resource Management (SHRM), the world's largest association devoted to human resource management.

Michigan does not yet have smokers' rights laws on the books but Petesch says if this issue offends the sensibility of privacy of some of the state's lawmakers there's the possibility that they could enact some sort of protection to prevent this type of screening from happening in the future. There's also the issue of market forces at play in today's labor market.

"If people don't like a certain policy and if the job market is sufficiently liquid then people will vote with their feet if they find an employer's practice particularly Draconian," he said.

STEPHEN PAREZO is the Media Manager for Fiducial.