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Staffing Management: Wanted: Non-Smokers

Stephenie Overman  1/1/2008
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Vol. 4, No. 1

Refusing to hire candidates who test positive for nicotine may help reduce health care costs. But is it worth it?

The Cleveland Clinic's policy is a model for companies that want to reject job applicants on the basis of nicotine use, says an employment lawyer who monitors workplace smoking laws. But, because of varying state statutes, it's a policy that not many companies can emulate.

The Cleveland Clinic's policy not to hire nicotine users was phased in over a three-month period. In July 2007, the clinic began testing job candidates for cotinine, a nicotine metabolite, during their mandatory post-offer physical exams. Through Sept. 1, the clinic gave those who tested positive for cotinine access to free smoking-cessation services. During that time, a positive test did not affect a person's employment status.

Since Sept. 1, however, prospective employees are informed when they apply for a job at the clinic that if they test positive for tobacco products, they will not be considered for employment. The Cleveland Clinic refers applicants who smoke to tobacco-cessation resources, paid for by the clinic, and, after 90 days, individuals who are successful in quitting are encouraged to reapply.

"Cleveland is saying, 'We care so much about you that we'll pay' " for the smoking-cessation program, says Garry G. Mathiason, a senior attorney with Littler Mendelson in San Francisco. But, he adds, the policy also makes the point that refusing to hire smokers "is not discrimination on the basis of an indelible characteristic, something you personally can't change. You have the power to change your behavior" and stop smoking.

Mathiason notes that in Ohio it's legal for a company to have a policy stating that it won't hire smokers. But in 32 states, statutes restrict what companies can prohibit.

In New York, for example, "it is unlawful to discriminate on the basis of consumption of a lawful consumable" outside of work, Mathiason says. A number of other states have similarly worded statutes.

Companies that can lawfully screen out nicotine users--and that choose to do so--take varied approaches. At the Cleveland Clinic, which Mathiason calls "the flagship," any positive test can be verified if needed by a second test using a different detection process on the same sample in a different laboratory, according to Erinne Dyer, a spokeswoman for the clinic. The cost is about $2 for the first test and $28 for the verification test.

The clinic's commitment to hiring non-smokers has not resulted in significant recruiting woes, Dyer says. In fact, "the best few months for recruitmentof nurses has just occurred. Many are coming to us due to the healthier focus."

The policy affects applicants at the clinic's locations in Ohio and Florida. The clinic has not faced any legal challenges so far, she said.

Not all companies that close their doors to employees who smoke are so fortunate. Another Ohio-based company, Scotts Miracle-Gro, is facing a lawsuit after it announced in 2006 that it would no longer employ smokers. Scotts Miracle-Gro is being sued, however, not by a job applicant but by an employee who lost his job after testing positive for nicotine. The Homac Cos. tests prospective employees for nicotine as well as for drugs and alcohol. In fact, the company goes so far as to state on the careers page of its web site "Tobacco-free candidates only." Homac, which manufactures electric connectors, has about 400 employees at its Ormond Beach, Fla., headquarters and another 65 workers in Corcoran, Calif.

Union Pacific, a railroad network that operates in 23 states, screens job candidates for drugs in the states where it is legal to do so, but does not administer a nicotine test. There's no need to: "We will not process applications of people who indicate they are smokers," says Kathryn Blackwell, assistant vice president for corporate communication. This self-reporting process "works fairly smoothly," she says.

But she admits that the company will ignore its policy for a compelling reason. "If we have a situation where we have a hard time filling positions in remote parts of the railroad network, we will hire a smoker and encourage the person to get in a cessation program. Or if a candidate says he or she will try to quit smoking, we will give the person consideration," Blackwell says.

Testing Can Be Dangerous

For companies in states that protect smokers, Mathiason asks, "What's the purpose of testing? Is testing per se unlawful? Probably not. There are a lot of things you can test for, such as cholesterol level. It's how you use the information" that can get a company into hot water. If a company tests for nicotine, it raises the question of what the company is going to do with that information.

"If you're testing for a substance that is protected by statute to consume outside of work," he continues, "the only possible reason [a company] could be wanting that information is to make adverse decisions on employment. In states that have statutes, I would argue that [testing for nicotine is] dangerous. A person can turn around and say, 'I was highly qualified for this job and wasn't hired.' "

In states that do not have prohibitions, Mathiason still advises caution. "Amass all the information that's out there about injury rates, absenteeism, health care costs [and] increases in workers' comp rates" that are attributable to tobacco use.

"You can make the business case. You can make the case that it's harmful to individuals. You can wear a positive hat here," he says.

In addition, he advises, look at your industry and culture. "For an HR professional, it's a vital consideration. If your culture is one where there is heavy smoking, you'll have a hard time" implementing strict non-smoking policies of any type. On the other hand, "if you're a medical institution, your culture gives you an advantage. You can say, 'We know how dangerous it is, and we would be irresponsible employers if we did nothing.' "

The Breaking Point

Lewis Maltby, president of the National Workrights Institute in Princeton, N.J., says there's no question that employers can save on health care costs by having a policy that allows them not to hire smokers.

"The serious question is whether it's a smart policy," Maltby says. "Occasionally, you have to turn down the best applicant because that person smokes. Applicants aren't equal; you don't go through the interviews, the references [and] the background checks for the fun of it. You evaluate candidates because everyone knows some are better than others. Clearly there's a cost if you refuse to hire" anyone who smokes.

If a company decides to go in that direction, Maltby estimates that, given the number of smokers as a percentage of the population, "20 percent of the time you're going to turn down the best applicant. You have to weigh the cost of taking the second-best hire against the health care cost [savings]. If you're hiring burger flippers, maybe [it won't affect the company much]. But it doesn't have to be that far up the food chain for the difference between the first and second best to be more than the difference in health care savings. The question is, where is the breaking point?"

And if an employer is already having trouble finding quality hires for its open positions, "turning down any qualified applicant is a cost, because you have an empty chair," Maltby says.

Stephenie Overman is editor of STAFFING MANAGEMENT magazine.

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