The notion of eliminating smokers from the workforce has appeal: they cost an average of $4,000 more per year than nonsmokers in absenteeism, lost productivity, and medical and workers' compensation claims, according to the Centers for Disease Control. But such an approach remains a gray area. Although smokers have tried to be considered disabled under the law, Doyle says, "the federal Americans with Disabilities Act doesn't recognize the nicotine-addicted as a protected class."

Does this trend create a legal slippery slope of employers targeting anyone who might develop health problems — smoking today, obesity tomorrow? Not likely, says Doyle, because smoking is in a different league. "The evidence that smoking is dangerous is undisputed. But obesity caused by a medical condition is protected under the law." What about people who risk injury by, say, racing cars or climbing Mount Everest? "Individuals who engage in risky recreational behavior in their private lives are not protected under laws that currently exist," says Doyle. Skydivers beware. — M.H.

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