When the boss is a medical watchdog

Higher premiums. Higher co-pays. Anyone with employer-provided health insurance has noticed that workers are being asked to shoulder more of the rising cost of healthcare. But employers are also trying to build a healthier (i.e. less expensive) workforce, and aspects of that trend are disturbing.

It almost goes without saying that having healthy workers helps the employer as well as employee, and that improved health is a desirable goal for any society. But what if an employer, in trying to encourage a healthier lifestyle among workers, asks about a person's medical history? Suggests a course of preventive or curative action? Or decides not to hire a person who poses too much of a health-cost risk?

These questions relate to privacy, choice, and discrimination, and as premiums rise they're bound to come up more frequently.

The latest example of concern involves retail giant Wal-Mart. A recent internal memo from the benefits vice president to the board of directors proposes adopting a more affordable health plan for employees. So far, so good. But the memo, leaked by an anti-Wal-Mart group to the media, ventures into murky legal waters when it suggests controlling costs in part by trying to "dissuade unhealthy people from coming to work at Wal-Mart." This might be done by "designing all jobs to include some physical activity (e.g., all cashiers do some cart gathering)."

The memo notes that Wal-Mart's workforce is "aging faster" and is "sicker" than the national average, particularly in relation to obesity. The board hasn't yet acted on the screening proposal, but if Wal-Mart adopts it, and it's code-speak for rejecting older job applicants or a category of obesity covered by the Americans with Disabilities Act, that could violate federal antidiscrimination laws.

The US economy depends on "at will" employment for a flexible labor force. There's nothing illegal about screening out unhealthy employees - if it doesn't violate federal laws banning discrimination based on sex, race, age, religion, ethnic group, or disability. That's why it's legal, for instance, for Union Pacific to refuse to hire smokers; they don't fit those federal criteria.

Even if the federal government doesn't consider this discrimination, many states do. Since the late '80s, they've passed "lifestyle legislation," blocking companies from discriminating against workers for legal activities off the job. So Union Pacific can shut out smokers in only seven states.

There are different issues at stake inside a workplace, when employers try to change unhealthy behavior. Voluntary "wellness" programs - a growing trend - give employees a break on healthcare costs if they exercise more, get screened for certain diseases, or alter their diets. Some companies also penalize smokers. These practices mirror insurance firms: reward low risk, punish high risk.

But such programs raise serious questions. How voluntary is voluntary when a suggested lifestyle change is tied to money? Who defines what constitutes health, or how best to achieve it? Can medical privacy laws be adequately enforced? How deeply might a company peer into a person's private life to find unhealthy habits?

Rising health costs are pushing employers into gray areas of civil liberties. Americans should be alert.