Legal Trends

Smelling Smoke: HR has a fine line to walk in balancing smokers’ rights laws with workplace smoking bans.

By James B. Thelen December 1, 2006

HR Magazine, December 2006

Kristen Bufalino does not even remember a time when California employees could smoke freely in the workplace. Bufalino, a human resource manager in her early 30s for the studio division of video game software publisher Activision Inc., says most of the hundreds of other 30-something employees in the company’s Santa Monica, Calif., complex probably don’t either. That’s due in large part, no doubt, to a law passed more than 10 years ago by the California legislature that bans smoking in most enclosed places of private employment. Smoking is allowed only in designated break rooms that are set apart from working areas and employee entrances, and then only if the break room is separately ventilated directly to the outside.

This type of restriction is gradually spreading across the land. More than 30 states currently have bans of some sort on smoking in public and private workplaces, with various exceptions for small employers and hospitality-related workplaces such as hotels, restaurants and bars. Several states have joined the list in the past two years alone.

Where state legislatures have not acted, increasing numbers of municipalities are stepping in to pass locally targeted workplace smoking restrictions or bans. Chicago, Philadelphia and Wayne County, Mich. (metropolitan Detroit), are recent notables among them. Hundreds of other cities and counties around the country have done the same.

Employers, too, are getting into the game. According to press reports over the past year, Northwest Airlines and publishing giant Gannett Co. had plans to begin charging higher health insurance premiums to employees who smoke. And who in the HR community has not heard of the Weyco company’s smoking terminations? Weyco, a health benefits management firm in Okemos, Mich., began testing its 200 employees for smoking in January 2005. Employees who refused or failed the test were fired, and as many as 20 other employees left the company voluntarily because of the policy.

While it would seem the pendulum is swinging toward workplace smoking bans, there are also forces pushing it in the opposite direction. National attention brought to the issue by situations like the Weyco terminations has highlighted that an equal number of states protect employees who smoke outside the workplace. In many cases, these workplace “lifestyle antidiscrimination” laws coexist with—and even predate—workplace smoking restrictions.

Does this represent a set of conflicting mandates for HR—a seeming gulf between smoking rights and smoking restrictions? Surely HR is in the middle, monitoring both workplace smoking policies and antidiscrimination compliance efforts. Yet a careful consideration of the interests involved demonstrates ways for HR to balance an employee’s right to smoke outside of work with the employer’s obligation to provide a smoke-free working environment.

Wide Variety Of Smoking Restrictions

Smoking restrictions come in many shapes and sizes.

According to the American Nonsmokers’ Rights Foundation, as of July 2006, six states—Delaware, Massachusetts, New Jersey, New York, Rhode Island and Washington—prohibit smoking completely in all workplaces (restaurants and bars included), with no exception for ventilated smoking rooms. New York’s law takes the prize for brevity, imposing a complete, no-exceptions workplace smoking ban in just eight simple words: “Smoking is prohibited in all places of employment.”

Florida, Montana, North Dakota and South Dakota completely prohibit smoking in all private workplaces, but they provide an exception for restaurants and bars. The American Lung Association’s Tobacco Policy Project reports that Georgia, Montana, North Dakota, Rhode Island and Washington all strengthened their smoke-free-air laws in the past year, while Arkansas, the District of Columbia, Maine and New Jersey have enacted workplace smoking restrictions or bans that have taken effect this year.

Though state workplace smoking restrictions are essentially common in their ends, they vary greatly from state to state in their means, in some places clearly reflecting local interests or heritage.

In California, for example, the workplace smoking ban does not apply at a theatrical production site where employees are working if smoking is an “integral” part of the story.

True to its state motto of “Vermont, Freedom and Unity,” Vermont’s workplace smoking restriction law incorporates the democratic notion of employees voting for or against smoking. There, among other aspects of the law (which generally requires employers to adopt a policy that at least restricts smoking to designated enclosed areas), employers may allow smoking in designated unenclosed areas only if the workplace is laid out such that smoking in the area will not be a physical irritant to nonsmoking employees, and then only if 75 percent of the employees who work in the designated area agree to allow smoking.

In Minnesota, the legislature passed a law in 1999 restricting smoking only in workplaces frequented by the general public. At the time, though not specifically addressing smoking in other enclosed workplaces, the law did direct the state health commissioner to establish administrative rules to restrict or prohibit smoking in factories, warehouses and any other places of work where the close proximity of workers or the inadequacy of ventilation causes secondhand smoke problems for nonsmoking employees. When adopted in 2003, the rules restricted smoking in all offices and factories, warehouses or similar places of work, except in private enclosed offices (if the door is kept closed while smoking occurs) and in designated smoking-permitted areas of a lunchroom or lounge subject to specified limitations in the rules.

Louisiana’s law is somewhat unusual. Enacted in 1993, the law requires employers with 25 or more full-time employees to adopt a smoking policy that specifically provides nonsmoking employees with the right to object to smoke in their office spaces. The law goes on to require employers to attempt to reach reasonable accommodations with employees who object to smoke in their workspaces—but specifically without requiring the employer to make any expenditures or structural changes. Employers may designate nonsmoking areas, which must be clearly marked with signs, and the adopted policy must be posted as well. The statute does not apply to any private enclosed office workplace that is occupied only by smokers (even though nonsmoking employees may visit such areas).

Even where workplace smoking may not be restricted by state law or local ordinance, employers themselves may choose to restrict or ban smoking at work. For example, at Pullman Industries Inc., an auto parts supplier with more than 450 employees at two union-represented manufacturing plants in South Haven, Mich., plant work rules prohibit smoking except in designated areas outside each plant. Michigan itself currently has no state law restricting smoking in private workplaces, though many counties have passed workplace smoking restrictions in recent years.

Some employers go even further, banning smoking completely—even outdoors and in company parking lots. Others create disincentives to smoking, from higher health and life insurance premiums for employees who smoke to the extreme of not hiring applicants or discharging employees who smoke.

It is when employers begin thinking about policies such as these, however, that consideration must turn to a related area of law—whether the state has prohibited employers from treating employees or applicants who smoke outside of work differently from their nonsmoking counterparts.

Smokers’ Rights

According to the National Workrights Institute, 30 states and the District of Columbia currently have some form of smokers’ rights laws on the books. These so-called “lifestyle antidiscrimination” laws protect employees and applicants from discipline or other adverse employment actions either specifically because they smoke or generally because the persons use a lawful product, such as tobacco, outside of work.

As with state and local smoking restrictions, smoking rights laws vary in approach. And there is a common goal—the basic legal protection of individuals whose smoking does not take place at, or otherwise affect others in, the workplace.

Beginning with Illinois in 1987 and followed by Virginia in 1989, 25 states had passed smoker protection laws by 1994, with half of them coming in 1991 alone. Three states have enacted smoker protection laws more recently—Missouri and Rhode Island in 2005 and Indiana in 2006.

These laws typically prohibit employers from discriminating against individuals who use tobacco products outside of work regarding the compensation, terms, conditions and privileges of employment. Not hiring applicants or discharging employees for this reason is often expressly prohibited as well. Common exceptions are made for nonprofit and religious organizations whose missions include discouraging tobacco use by the general public (as does the American Lung Association). Eleven states—Illinois, Indiana, Minnesota, Missouri, Montana, New York, North Carolina, South Dakota, West Virginia, Wisconsin and Wyoming—wrote exceptions into their laws to permit employers to charge differential rates or otherwise use some form of financial incentive related to life, health or disability insurance benefits for employees based on whether they smoke.

The bulk of these laws cover life, health and disability insurance benefits and, provided certain notice requirements are met, allow for different coverage types or premium rates depending on whether an employee smokes.

However, South Dakota’s law covers only health and life insurance benefits, while Missouri and Indiana make exceptions only for health benefits. Indiana’s law does not expressly address employee premium differentials, instead allowing benefits-related financial incentives intended to reduce tobacco use among employees. Missouri expressly permits employers to charge a reduced premium for employees who do not smoke, but not the converse (e.g., a higher premium for employees who do smoke).

North Carolina’s law specifically requires the employer to pay the same level of premium to any insurance provider for each employee, while many other states in the group are silent on this particular point.

As with the body of workplace smoking restriction laws, some less common provisions are notable. While generally prohibiting discrimination against employees who smoke outside the workplace, Oklahoma and Oregon nevertheless permit employers to negotiate into collective bargaining agreements provisions that prohibit employees from smoking outside of work.

Colorado’s law specifically protects employees who smoke off-duty from termination, but it is silent on whether an employer can pursue a policy of not hiring smokers. North Dakota’s law includes a unique provision that specifically prohibits both employers and employees from publicizing or advertising in any fashion that individuals who engage in any lawful activity (such as smoking) outside of work are unwelcome, objectionable, not acceptable or not solicited.

Company Policy

Although an employer may be located in a state that affords smokers these legal protections, that employer is still free to restrict or ban smoking in the workplace as a matter of company policy.

In North Carolina, for example, the R.H. Donnelley Corp., a leading publisher of Yellow Pages directories and online local commercial search company with headquarters in Cary, N.C., administers a comprehensive smoke-free workplace policy. The company’s policy bans smoking in all company facilities around the country, including company vehicles with passengers and off-site company-sponsored meeting locations.

Gretchen Zech, R.H. Donnelley’s senior vice president for human resources, says the company’s policy expressly notes a commitment to the needs of employees who smoke, but that the goal of eliminating the harmful effects of smoking in the workplace is paramount. Further, Zech notes, the R.H. Donnelley policy applies not just to employees but also to practically anyone associated with the company—including visitors, customers, consultants and contractors.

Coexistence of Smoking Rights and Restrictions

That R.H. Donnelley can administer a comprehensive smoke-free workplace policy from its home base of North Carolina, which enforces one of the country’s earlier and strongest smoker protection laws, shows that workplace smoking bans can coexist with workplace legal protections for employees who smoke outside of work.

In many states, a comfortable coexistence between smoking rights outside of work and smoking restrictions at work is written into the law itself. The smoking rights laws in Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Mexico and Tennessee, for example, all note that employees can be required to follow their employers’ workplace smoking policies. Still more illustrative of this point is the fact that 18 of the 31 states (including the District of Columbia) that protect employees because they smoke outside of work also prohibit or restrict smoking at work.

Across the legal spectrum, there is broad support for the differing interests and policies at play here. Even the National Workrights Institute, while advocating for the passage of laws protecting employees for their legal off-duty conduct, acknowledges that government and employers have a legitimate interest in regulating smoking in the workplace. HR practitioners with labor arbitration experience know that arbitrators tend to frown on disciplinary action taken against employees for off-duty conduct unless there is an obvious detrimental impact on co-workers or the employer’s business interests.

The Society for Human Resource Management (SHRM) itself was an early advocate for the position that employment decisions should be made based only on performance-related considerations consistent with business necessity—and not on whether an employee smokes outside of work. Such a position clearly allows for smoking restrictions at work.

HR’s Challenge

In states with both workplace smoking bans and smoker protection laws, HR still faces a challenge to foster a working environment that shields smokers from discrimination while shielding employees from smoke, particularly since the legal coexistence between smoking restrictions and smokers’ rights may not be self-apparent to employees. And, as with other laws that vary from state to state, employers with employees in several states face special HR challenges when it comes to meeting differing legal compliance standards.

R.H. Donnelley’s Zech speaks to the first point, noting that the company’s policy expressly recognizes that employees who smoke have rights even as it comprehensively protects everyone from smoke in the workplace by prohibiting smoking. The lesson for HR is really quite simple: It’s OK to ban smoking at work, but it’s also necessary to ensure that employment decisions affecting employees who smoke outside of work are based on job-related criteria consistent with the employer’s business interests.

Zech speaks to the second point as well. With more than 4,000 employees in 28 states, Zech provides companywide HR direction and support and coordinates legal input for related HR issues, but also relies on a team of 12 HR regional representatives to help address state-specific issues outside North Carolina. With so much variety among the states’ smoking restriction and smoker protection laws, a regional approach such as R.H. Donnelley’s is well-suited to address all compliance issues. More important, with a diligent focus on employee rights, companies operating in several states will ensure both that employees are protected from the harmful effects of smoke at work and that employees who smoke are protected from the harmful effects of unlawful discrimination.

Going Forward

Workplace smoking restrictions and smokers’ rights will continue to receive attention, particularly in states that have not addressed one or the other with legislation. Organizations such as the American Lung Association and the National Workrights Institute continue a lobbying battle to advance their interests, which, as this article points out, are not necessarily mutually exclusive. The issues will therefore continue to be important for HR, which sits on the front line of balancing the interests of both sides.

Author’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

James B. Thelen, Esq., is a labor and employment attorney with the Lansing, Mich., office of Detroit-based Miller, Canfield, Paddock and Stone PLC. He regularly contributes to SHRMs Court Report and Legal Report and is active with the SHRM affiliate Human Resource Management Association of Mid-Michigan.

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