Can Employers Refuse to Hire Smokers

This topic brings out strong opinions in people. Setting aside the law for a moment, let's examine the opposing views.

The "No Way This is Right Group" believes that what someone does in their home shouldn't matter to their employer. The argument is, " BIG BROTHER IN THE EXTREME." If you can tell someone they can't smoke at home, what is next? Will it be you can't eat a greasy cheeseburger at home because it isn't healthy? Or you cannot snow ski or water ski because you could break your leg? Enough is enough. If I do a good job, my Employer can just butt out of my life and "don't let the screen door hit you in the ass as you leave".

The contrary argument goes like this. We all know that smoking is bad for you. Everyone knows that you can't smoke at work anymore. Smoking creates or contributes to health issues, i.e. rising health insurance costs. Health insurance costs are off the charts. Smoking increases absenteeism and affects the remaining employee who don't miss work. People who are heavy smokers have bad smoke smell. (See my past article on smells at work).

The leader in the "you can't smoke at home" is Weyco Inc., a Michigan company. Weyco's CEO Howard Weyers stopped hiring smokers in 2003. In January 2004, Weyco implemented an organization wide testing program for tobacco use. If the employee didn't take the test or was positive on the test, the employee had to pay $50. But the employee had an option, he or she could sign a letter of intent to quit, and Weyco would waive the $50 penalty, plus pay for a treatment program for them.

Four employees refused the test and left the company. Two of those employees were interviewed by 60 Minutes correspondent Morley Safer. www.smokersclubinc.com/index.php

Weyco also began random testing in 2005. Weyers informed his employees that if they tested positive in a random test, they would be sent home for a month without pay. When the employee returned to work, they would be tested again. If they tested positive again, they could not return. If they were negative, they could return but would have to sign a "last chance" agreement that they could be tested daily.

Weyers stated in a interview that in January of 2006, they extended their non-tobacco use to spouses who were on the Company's medical plan. If the spouse was on the Company's medical, they had to be tested. If a spouse tested positive in 2006, it resulted in increased costs for the employee of about $80 per month. Again, the spouse could sign a letter of intent to quit and Weyco would waive the fee and pay for the treatment plan.

Weyco has the most aggressive anti smoking policy that I have found. In Texas there are companies that refuse to hire smokers. Baylor Health Care System in North Texas will not hire employees that use tobacco if any form. The FDA estimates smoking costs American employers some $200 billion a year in lost productivity and increased medical costs. In a CBS interview http://dfw.cbslocal.com/2011/09/22/only-non-smokers-need-apply-at-baylor/ Baylor Health Care CEO Joel Allison stated, "It's about how we continue to deal with the rising health care costs."

Can companies legally refuse to hire smokers? Yes because smoking is not a protected class like race, gender, ethnicity, national origin or age. The CBS article also quotes Dallas attorney Thomas Brandt, "People think well, that's discriminatory, but really there are only certain factors that you cannot consider when making hiring decisions."

Could nicotine addiction be considered a disability? Under the American with Disabilities Act (ADA), nicotine addiction was not considered a disability. Smoking or nicotine addictions were easily remediable, meaning that since a person could quit, they were not considered disabled under the ADA. In January 2009, the amendments to the ADA (ADAA) were passed. Now it does not matter if the impairment is easily remediated. The determination under ADAAA is whether an impairment substantially limits a major life activity. So under the ADAA, whether or not you can quit smoking is not the issue. The issue is does it substantially limit a major life activity? Could the employee argue that his employer perceived or regarded him as having a disability. Perhaps, since being regarded as disabled is actionable even if you don't meet the statutory definition. Are those cases viable? In my opinion, no. But it remains to be seen.

Is smoking a constitutional right? Again the answer is no. Do you have a common law privacy right to smoke in your home? No you don't. The Public Health Institute presented a paper on this issue. ( http://www.phi.org/pdf-library/talc-memo-0051.pdf ) As pointed out in the article, the Constitution protects only personal rights that can be deemed fundamental or implicit in the concept of personal liberty. The guarantee of personal liberty relates to an individual's bodily privacy and autonomy in the home. Concepts that would be included in this protection involve marriage, contraception and family relationships. Smoking is not included in this list. There is no constitutional right to smoke.

So after the smoke clears, what should businesses do if they are contemplating a no smoking policy. The first step would be to institute a smoking cessation program. Give employees time to comply. Announce that all new hires will be presented with a form that specifically asks if they smoke or use tobacco products. A no smoking hiring policy is the first step. Depending on your industry, this may affect your applicant pool. Like any policy, you cannot pick and choose. If you have a policy of not hiring smokers, you cannot make an exception for Uncle Bob.

To enforce a no smoking policy period, you would have to have random testing for nicotine. There are inherent problems with any random testing program. I recommend waiting to take that step. Implement the no hiring policy and get your smoking cessation program going. This may be enough. Random testing for nicotine will send a negative influence in your work force. As a final note, I hope we don't have a no eating fried food policy because if so, I am in big trouble.

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