7/28/2019 64467899

1/4

f m p l o ymen t L a w Agenda

Is a ^Smoker-Free^ WorkplaceRight for You?E m p l o y e r s m a y r e fu s e t o h i r e s m o k e r s , b u t b e w a r e of l e g a l h u r d l e s i n m a n y s t a t e s .

By Joanne Deschenaux, J.D.

T he average smoker costs companies more than $12,000 a year in health- anddisabuity-related costs and takes four 15-minute breaks a day, claims Action onSmoking and Health, an anti-smoking group in Washington, D.C."Smoking is the biggest factor in controllable health care costs," says JohnBanzhaf, the executive director of the group and a law professor at The George Wash-ington Un iversity.

"Em ployers are becoming increasingly aggressive about eliminating sm oking in theworkplace and trying to m anage its attendant costs, not only by imposing on-the-jobbans but also by adopting policies that address employees' off-the-job behavior," saysSusan K. Lessack, an attorney in Pepper Ha milto n's Philadelphia office.

Doze ns of major compan ies now have "smoker-free" policies. Alaska Airlines,Un ion Pacific and Turner Broadcasting have refused to hire smokers for mo re than 20years. Hospitals in Florida, Georgia, Massachu setts, Missouri, Ohio, Pennsy lvania,Tennessee and Texas, am ong other states, stopped hiring smokers in the last year.

However, the American Civil Liberties Union Ccdls an employer's refusal to hire

smokers "lifestyle discrimin ation."At least 29 states and the District ofColum bia have statutes that protectemployees from adverse employmentactions base d on the ir off-duty activi-ties, including smoking, the NationalConference of State Legislatures (NCS L)reported in October 2010. And federallaws, such as Titie VII of the Civil RightsAct of 1964 and the Am ericans with D is-abilities Act, may come into play.

So, should your company leadersconsider banning the hiring of smokers?Any employer contemplating such a stepshould first weigh policy considerationsand potential legal pitfalls, experts say."The re is a broad-based spectrum oflegal hurdles you have to jum p to be sureyour prog ram isn't going to get you intotrouble," cautions Greg Ash, an attorneywith Spencer Fan e Britt & Browne inOverland Park, Kan.W h e r e t o F o c u s?Banzhaf is perhaps the most visibleproponent of hir ing bans. "Smokersshould accept the fact that there is nolegal or moral right to smoke, and toforce others either to put up with theirsecondhand smoke or the huge coststheir smoking imposes," he says. "Stopwhining about 'discr imination' whencompanies make perfectly logical deci-sions not to hire people whose personalchoices impose huge, unnecessary costson the firm and its nonsmoking em-ployees."

However, An drew Tarsy, execu-tive director of the Progressive Business

Th e author is senior legal editor or SHRM.

7/28/2019 64467899

2/4

Employment Law AgendaLeaders Network in Massachusetts,strongly disagrees. Most businesses wouldbe better off trying to improve emp loyeehealth and cut costs through o thermethod s, he says. "The proposal to banthe hiring of smokers is neither practicalnor likely to spread to the mainstream. It'sa distraction from a broader strategy."There is enormous cost and com -plexity involved in instituting a ban, h enotes, and the focus of business shouldbe on hiring the best workers. Forty-seven mulion Am ericans smoke, heobserves, and "these people have to worksomewhere ."Karen Chadwick, a professor atthe Thomas M . Cooley Law School inAnn Arbor, Mich., says hiring bans areimpractical, particularly in some types ofbusinesses. "Some employment pools arehigh in smokers, such as those that dra wfrom noneducated applicants," she says."You are eliminating workers who havesome thing to bring to the table."Molly DiBianca, an attorney withYoung C onway Stargatt and Taylor inWilmington, Del., stresses the prac-tical difficulties of enforcing a ban onemploying smokers. Even if an applicanttests negative for nicotine on an initialscreening, what happens once the appli-cant joins the workforce, she asks. Howdo you guarantee that he or she does notthen star t or resume smoking? "Som ecompan ies do annual nicotine test ing,"she says, "but that is intrusive and couldlead to morale problems." Such testingis also expensive, and it consumesadministrative time and resources. Butif you don 't test, it 's likely that som eemploye es ma y lie abou t off-dutysmoking, she adds.

Ultimately, Ash says, "It 's a matterof personal opinion about how pater-nalistic employers should be. Shouldan employer be looking at the off-dutyconduct of em ployees?"Lega l L imi ta t ionsIn addition to weighing these policy con-siderations, "be very aware of whetheryour state has legislation prohibiting anykind of discrimination based on nonworkactivities," Chadwick says. Twenty-ninestates, plus the District of Columbia,have such laws. According to the NCSL,these statutes fall into three categories:

18 jurisdiction s have enacted stat-utes prohibiting discrimination againstsmokers . They are Connecticut , theDistr ict of Columbia, Indiana, Ken-tucky, Louisiana, Maine, Mississippi,New Hampshire, New Jersey, NewMexico, Oklahoma, Oregon, Rhode Is-land, South Carolina, South Dakota,Virginia (for public employeesonly). West Virginia andWyoming . Eight states protectthe use of lawil prod-ucts. They are Illinois,Minnesota, Missour i,Montana , Nevada ,North Carolina, Tennes-see and Wisconsin.

of a conflict of interest with the employee's responsibilities.W hile there is virtually n o case lawon this issue, Mattingly notes, this statutory language could sup port arguing foran exception for particular e mployeessuch as health c are workers or fitnessinstructors.Some state statutes specifi-cally allow for an increase ininsurance premiums for^y smoke rs, provided certainJ conditions are m:t. Someof these states already hadthe smoker-protec:tionstatutes in place a ndamended them so thatemployers could discriminat

Eighteen ju ris d ic tions have enactedstatutes prohibiting discriminationag ainst smokers. Fo ur states offer statu tory protectionfor employees who engage in lawful ac-tivities. They are California, Colorad o,New York and North Dakota.These lifestyle statutes prevent anemployer from terminating an employeeor refusing to hire an app licant w hosmokes tobaccoa product lawfullysold in the Un ited S tates.These laws all differ. Several do notapply to all industries, and ma ny containnumerous exceptions. "You actuallyhave to read the sta tutes," stressesMen dy Matt ingly, in-house employm entcounsel for Solar Turbines in S an Dieg o.

For example, Missouri 's law explic-itiy exempts "not-for-profit organiza-tions whose principal business is healthcare promo tion. "Other statutes, including those in Col-orado and North Carolina, allow restric-tions based on "bona fide occupationalrequirements." Employers in those statesmay restrict off-duty and off-premisessmoking wh en the restriction: Relates to a bona fide occupa tionalqualification. Is reasonably related to emp loyme ntactivities. Is necessary to avoid the appearance

in "terms, cond itions, and privileges" ofemploym ent by charging sm oke rs mo refor health insurance, Mattingly explainsIn addition to state law restrictionsimposed by lifestyle statutes, employ ersmust implement any hiring or retentionpolicies imp acting smok ers in a consis-tent marme r to avoid a claim of disparattreatme nt in violation of anti-discrimination statutes such as Titie VII, Lessacksays. "Courts have long recogn2:ed thatTitle VII apphes not only to the m oreblatant forms of discrimination, but alsoto the subtler forms, such as discrimina-tory enforcement of work rules," she

explains.Issues may also arise under the Am ericans with Disabilities Act, Lessack a ddsnoting that a smoker may either claimthat he or she is "perceived as " having adisabity or that nicotine add iction is aprotected disability unde r the lavif.In addition, making employm ent decisions based on out-of-work conduct mayimplicate state privacy laws, accordingto Ash, w ho no tes that this issue \vasraised in a recent case litigated in a Ma s-sachusetts federal court {Rodrigues v . EGSystems Inc. d/b/a Scotts LawnService,2009). The court rejected the invasion of

7/28/2019 64467899

3/4

privacy claim of a worker w hose job offerwas rescinded wh en his pre-employmentnicotine test came back positive becausehe had made no secret of the fact that hewas a smoker. However, Ash notes, theresult might have been different h ad theemployee not been so open about his off-premises sm oking.

Restricting tobacco use m ay be aman datory subject of bargaining inunionized workplaces.S u g g e s t io n s f r o m E x p e r tsMattmgly advises any employer con-sidering implementing no-smoking ortobacco- and nicotine-free policies toconsult with counsel to learn whetherit operates in a state that restricts em-ployment policies based on lawful useof products. The employer should thendetermine whether there are any excep-tions that might apply to a particularworkplace or set of employees. The em-ployer should also explore the optionsavailable in no-smoking initiatives andencouragement of healthier lifestyles.

If a decision ismade to go "smoker-free," it should be done in steps, she says.If employers already have a smoke-freeworksite, then going to a smoke-free"cam pus" (encompassing anywhere onthe grounds or near the building) is thenext step, followed by a possible "nosmokers rule."

But it m ay not make sense for a bar,restaurant or casino, for example , to havea "no smokers hired or employed" ruleif customers smoke on the premises andexpose employees to smoke. The costsfrom secondh and smoke are still there.S o , if the go al is to cut costs, itw o n ' t bemet that way.

Rather than instituting a hiring ban,Tarsy suggests that employers "e mph a-size health and Wellness as fiindamentalto the workplace." Offer and encouragesmoking-cessation programs. Offerfinancial incentives to quit, such as lowerhealth care premiums for nonsmokers.

Online ResourcesFor more information about smokingpolicies at work, see theonline version ofthis article at www.shrm.org/hrmagazine/071 tEmplovmentLawAaenda.

Business should take a role in makingpeople healthier, he says, but, "I'mdrawing the line at saying to them thatyou can't work here because your bloodsays that you smoke."

DiBianca suggests that employerssimply prohibit smoking breaks otherthan breaks that are legally mandated."If an employee goes through theworkday w ith only one opportunity tosmoke at the meal breakyou've g onea long way to reduce tobacco use." Thisapproach eases "the discomfort from

wh at is perceived as an employer's intru-sion into its employees' personal lives."

She notes that what m akes sensediffers among industries. A ban may workfor hospital em ployees, she says, because"trying to pro mo te Wellness" is a part oftheir jobs.

Whatever action you elect, "do it ina way that's compassionate. Quittingsmoking is hard ," M attingly stresses.And "take into account the culture ofthe workplace. It 's not a one-size-fits-allissue." DD

Benefits Outsourcing ExcellenceThere's more to quality than meets the eye

At Towers V\/atson, quality me ans : Advanced technology that impresses even theworld's leading tech companies Proven processes and quality controls that ensure accurate administra tion Peace ofmind for our clients, who know we're their partner every step of the way Customer satisfaction rates that blow away the comp etitionTop-quality benefits outsourcing. It's what we stand for. It's what we deliver.+1 800 430 8616towerswatson.com/outsourcing

Towers Watson. A global company wi th a singular focus on our c l i en t s .

BenefitsRisk and Financial ServicesTalent and Rewards

towerswatson.com TOWERS WATSON

7/28/2019 64467899

4/4

Copyright of HRMagazine is the property of Society for Human Resource Management and its content may not

be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written

permission. However, users may print, download, or email articles for individual use.