A U.S. Surgeon General’s Report issued this month marks fifty years since the Surgeon General’s landmark report in 1964 that set in motion a nationwide campaign to reduce and hopefully eliminate tobacco smoking in the United States. Also during this month, rules under the Affordable Care Act (ACA) go into effect, enhancing employers’ ability to provide financial incentives to employees to “kick the habit!” Employers proceed with caution, however, as the matrix of laws affecting so-called “wellness programs” present significant legal risks and practical obstacles.

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The 2014 Report is more than 900 pages and is full of information about the success America has experienced in reducing smoking, while noting the challenges that remain. The Report provides some information likely to be interesting to employers, such as:

A 2013 review of smoking and absence from work included several of the studies presented in the 2004 Surgeon General’s report along with more recent studies (Weng et al. 2013). In a meta-analysis of 17 of the studies, current smokers were 33% more likely to have an absence from work than nonsmokers (i.e., a group that combined never smokers and former smokers).

The Report also notes that:

Studies of contingency management interventions, in which quitting is rewarded with financial incentives, show promise, including higher quit rates (34% of women in the intervention arm quit compared to 7.1% of women receiving standard care) and improvements in infant birth weight (Higgins et al. 2010, 2012).

But for employers and their varied wellness programs, design and administration is fraught with risk as wellness programs sit at the crossroads of a range of federal and state laws. These include the American with Disabilities Act, the Health Insurance Portability and Accountability Act, the Age Discrimination in Employment Act, the Equal Pay Act and a host of others. Recent attention by the Equal Employment Opportunity Commission heightens these concerns.

Helping employees (and their dependents) stop smoking tobacco is a worthwhile goal. But some of the tools that can help achieve that goal, such as financial incentives designed to drive healthier behaviors, have significant risks associated with them. Employers should proceed with caution, but recognize that not doing anything also has risks.