Employers may refuse to hire smokers, but beware of legal hurdles in many states.
July 1, 2011
The average smoker costs companies more than $12,000 a year in health- and disability-related costs and takes four 15-minute breaks a day, claims Action on Smoking and Health, an anti-smoking group in Washington, D.C.
“Smoking is the biggest factor in controllable health care costs,” says John Banzhaf, the executive director of the group and a law professor at The George Washington University.
“Employers are becoming increasingly aggressive about eliminating smoking in the workplace and trying to manage its attendant costs, not only by imposing on-the-job bans but also by adopting policies that address employees’ off-the-job behavior,” says Susan K. Lessack, an attorney in Pepper Hamilton’s Philadelphia office.
Dozens of major companies now have “smoker-free” policies. Alaska Airlines, Union Pacific and Turner Broadcasting have refused to hire smokers for more than 20 years. Hospitals in Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee and Texas, among other states, stopped hiring smokers in the last year.
However, the American Civil Liberties Union calls an employer’s refusal to hire smokers “lifestyle discrimination.”At least 29 states and the District of Columbia have statutes that protect employees from adverse employment actions based on their off-duty activities, including smoking, the National Conference of State Legislatures (NCSL) reported in October 2010. And federal laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, may come into play.
So, should your company leaders consider banning the hiring of smokers? Any employer contemplating such a step should first weigh policy considerations and potential legal pitfalls, experts say.
“There is a broad-based spectrum of legal hurdles you have to jump to be sure your program isn’t going to get you into trouble,” cautions Greg Ash, an attorney with Spencer Fane Britt & Browne in Overland Park, Kan.
Where to Focus?
Banzhaf is perhaps the most visible proponent of hiring bans. “Smokers should accept the fact that there is no legal or moral right to smoke, and to force others either to put up with their secondhand smoke or the huge costs their smoking imposes,” he says. “Stop whining about ‘discrimination’ when companies make perfectly logical decisions not to hire people whose personal choices impose huge, unnecessary costs on the firm and its nonsmoking employees.”
However, Andrew Tarsy, executive director of the Progressive Business Leaders Network in Massachusetts, strongly disagrees. Most businesses would be better off trying to improve employee health and cut costs through other methods, he says. “The proposal to ban the hiring of smokers is neither practical nor likely to spread to the mainstream. It’s a distraction from a broader strategy.”
There is enormous cost and complexity involved in instituting a ban, he notes, and the focus of business should be on hiring the best workers. Forty-seven million Americans smoke, he observes, and “these people have to work somewhere.”
Karen Chadwick, a professor at the Thomas M. Cooley Law School in Ann Arbor, Mich., says hiring bans are impractical, particularly in some types of businesses. “Some employment pools are high in smokers, such as those that draw from noneducated applicants,” she says. “You are eliminating workers who have something to bring to the table.”
Molly DiBianca, an attorney with Young Conway Stargatt and Taylor in Wilmington, Del., stresses the practical difficulties of enforcing a ban on employing smokers. Even if an applicant tests negative for nicotine on an initial screening, what happens once the applicant joins the workforce, she asks. How do you guarantee that he or she does not then start or resume smoking? “Some companies do annual nicotine testing,” she says, “but that is intrusive and could lead to morale problems.” Such testing is also expensive, and it consumes administrative time and resources. But if you don’t test, it’s likely that some employees may lie about off-duty smoking, she adds.
Ultimately, Ash says, “It’s a matter of personal opinion about how paternalistic employers should be. Should an employer be looking at the off-duty conduct of employees?”
In addition to weighing these policy considerations, “be very aware of whether your state has legislation prohibiting any kind of discrimination based on nonwork activities,” Chadwick says. Twenty-nine states, plus the District of Columbia, have such laws. According to the NCSL, these statutes fall into three categories:
18 jurisdictions have enacted statutes prohibiting discrimination against smokers. They are Connecticut, the District of Columbia, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia (for public employees only), West Virginia and Wyoming.
Eight states protect the use of lawful products. They are Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee and Wisconsin.
Eighteen jurisdictions have enacted statutes prohibiting discrimination against smokers.
Four states offer statutory protection for employees who engage in lawful activities. They are California, Colorado, New York and North Dakota.
These lifestyle statutes prevent an employer from terminating an employee or refusing to hire an applicant who smokes tobacco—a product lawfully sold in the United States.
These laws all differ. Several do not apply to all industries, and many contain numerous exceptions. “You actually have to read the statutes,” stresses Mendy Mattingly, in-house employment counsel for Solar Turbines in San Diego.
For example, Missouri’s law explicitly exempts “not-for-profit organizations whose principal business is health care promotion.”
Other statutes, including those in Colorado and North Carolina, allow restrictions based on “bona fide occupational requirements.” Employers in those states may restrict off-duty and off-premises smoking when the restriction:
Relates to a bona fide occupational qualification.
Is reasonably related to employment activities.
Is necessary to avoid the appearance of a conflict of interest with the employee’s responsibilities.
While there is virtually no case law on this issue, Mattingly notes, this statutory language could support arguing for an exception for particular employees such as health care workers or fitness instructors.
Some state statutes specifically allow for an increase in insurance premiums for smokers, provided certain conditions are met. Some of these states already had the smoker-protection statutes in place and amended them so that employers could discriminate in “terms, conditions, and privileges” of employment by charging smokers more for health insurance, Mattingly explains.
In addition to state law restrictions imposed by lifestyle statutes, employers must implement any hiring or retention policies impacting smokers in a consistent manner to avoid a claim of disparate treatment in violation of anti-discrimination statutes such as Title VII, Lessack says. “Courts have long recognized that Title VII applies not only to the more blatant forms of discrimination, but also to the subtler forms, such as discriminatory enforcement of work rules,” she explains.
Issues may also arise under the Americans with Disabilities Act, Lessack adds, noting that a smoker may either claim that he or she is “perceived as” having a disability or that nicotine addiction is a protected disability under the law.
In addition, making employment decisions based on out-of-work conduct may implicate state privacy laws, according to Ash, who notes that this issue was raised in a recent case litigated in a Massachusetts federal court (Rodrigues v. EG Systems Inc. d/b/a Scotts LawnService, 2009). The court rejected the invasion of privacy claim of a worker whose job offer was rescinded when his pre-employment nicotine test came back positive because he had made no secret of the fact that he was a smoker. However, Ash notes, the result might have been different had the employee not been so open about his off-premises smoking.
Restricting tobacco use may be a mandatory subject of bargaining in unionized workplaces.\
Suggestions from Experts
Mattingly advises any employer considering implementing no-smoking or tobacco- and nicotine-free policies to consult with counsel to learn whether it operates in a state that restricts employment policies based on lawful use of products. The employer should then determine whether there are any exceptions that might apply to a particular workplace or set of employees. The employer should also explore the options available in no-smoking initiatives and encouragement of healthier lifestyles.
If a decision is made to go “smoker-free,” it should be done in steps, she says. If employers already have a smoke-free worksite, then going to a smoke-free “campus” (encompassing anywhere on the grounds or near the building) is the next step, followed by a possible “no smokers rule.”
But it may not make sense for a bar, restaurant or casino, for example, to have a “no smokers hired or employed” rule if customers smoke on the premises and expose employees to smoke. The costs from secondhand smoke are still there. So, if the goal is to cut costs, it won’t be met that way.
Rather than instituting a hiring ban, Tarsy suggests that employers “emphasize health and wellness as fundamental to the workplace.” Offer and encourage smoking-cessation programs. Offer financial incentives to quit, such as lower health care premiums for nonsmokers. Business should take a role in making people healthier, he says, but, “I’m drawing the line at saying to them that you can’t work here because your blood says that you smoke.”
DiBianca suggests that employers simply prohibit smoking breaks other than breaks that are legally mandated. “If an employee goes through the workday with only one opportunity to smoke—at the meal break—you’ve gone a long way to reduce tobacco use.” This approach eases “the discomfort from what is perceived as an employer’s intrusion into its employees’ personal lives.”
She notes that what makes sense differs among industries. A ban may work for hospital employees, she says, because “trying to promote wellness” is a part of their jobs.
Whatever action you elect, “do it in a way that’s compassionate. Quitting smoking is hard,” Mattingly stresses. And “take into account the culture of the workplace. It’s not a one-size-fits-all issue.”
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