Workplace Blood Testing of Smokers and their Spouses

From SFGate:

Howard Weyers tried the "carrot" approach by giving his employees incentives and encouragement to quit smoking. But when that didn't work, he resorted to the stick. A big stick.

Weyers, owner of a health care benefits administrator in Lansing, Mich., gave his 200 employees an ultimatum in 2004: Quit smoking in 15 months or lose your job. He refused to hire smokers. Ultimately, he extended his smoking ban to employees' spouses and monitored compliance through mandatory random blood testing.

Weyers' method, while effective, wouldn't fly in California because the state has laws that prohibit employers from making hiring or firing decisions based on employee participation in a legal activity. But participants in a smoking cessation forum hosted Monday by the Commonwealth Club of California found the idea nonetheless intriguing.

These programs by employers to save money on health insurance and prevent numerous use of sick days has been the talk for a while now.  But two things I find potentially troublesome about Weyers approach:

1.    The privacy rights of employees in their blood - of course, if this was a public employee, there would be significant Fourth Amendment issues. And as the article points out, this would not fly in states that have off-duty conduct statutes or smokers' rights statutes (like North Carolina or New Jersey).  For private employees, they generally have to rely on either state constitutional provisions (see Alaska) or on common law grounds like the invasion of privacy tort or wrongful discharge in violation of public policy. In states that don't have constitutional or statutory protection, it might be difficult to find a public policy against blood testing employees.  And then there is the dilemma of consent with the invasion of privacy action: if you don't consent to the blood test, there hasn't been an invasion; and if you do consent, how can the test be "highly offensive" to a reasonable person.  In short, there may be a little for private sector employees can do under the current common law to fight off such blood testing initiatives.

2.    Testing of the employee's spouse? - this I have never heard of and though the spouse uses potentially the same health plan, I don't believe that gives the right of the employer to control the conduct of a third-party, non-employee.  As far as legal recourse, perhaps the spouse would have a tort claim, but it would be more effective for state legislators to write a bill that protects an employee's family from such overreaching.

PS