05-01-2013
Over the years, smoking has been banned in practically every venue. Mad Men aside, gone are the days of seeing a movie in the theater through a haze of cigarette smoke.
Historically, businesses have been at the forefront of the no-smoking trend. For employers, the numbers tell the story. According to the U.S. Centers for Disease Control and Prevention (CDC), businesses lose approximately $3,400 each year for every tobacco-using employee due to increased health care costs and decreased productivity. Additionally, on average, smokers miss 6.16 days of work per year due to illness, while their non-smoking counterparts miss an average of only 3.86 days of work per year. 1
As a result, employers have tried a variety of methods to encourage their employees to stop smoking, from free cessation programs and financial incentives to increase insurance premiums and other financial penalties. Statistics have shown that such programs are only marginally successful. The latest tactic to gain favor among employers is to implement a hiring ban on tobacco users.
THE ETHICS OF A HIRING BAN ON SMOKERS
Some health care experts say the policy against hiring a smoker crosses an ethical line by targeting lower-income and less-educated groups who, statistics show, smoke at a higher rate than individuals with more education and higher incomes. One expert from the University of Pennsylvania Health System, which recently enacted a policy against hiring smokers, believes the policy is discriminatory. Ezekiel Emanuel, Chair of Medical Ethics and Health Policy at the University of Pennsylvania’s Perelman School of Medicine, sees the policy not as an attempt to improve employee health, but as an attempt to eliminate increased costs associated with employing workers who smoke. 2
Other critics of such policies caution against a “slippery slope” of hiring bans, including bans on hiring alcohol-drinkers and those who eat junk food. On its website, the American Civil Liberties Union (ACLU) characterizes employers’ refusal to hire applicants based on legal, off-duty behaviors (such as smoking) as “lifestyle discrimination.”
Some medical experts back the hiring bans; however, claiming the end result of reducing smoking is worth it. David Asch, a physician also on the faculty at the University of Pennsylvania Perelman Medical School, recognizes the practice of refusing to hire smokers is controversial and reflects a mix of intentions as well as outcomes that blend the bad with the good. He argues, however, that the hiring bans increase the stigma against smoking, and in this case stigma is used as a tool for good. He believes the threat that tobacco poses to communities, and businesses within those communities, merits taking a significant step to end smoking, in the form of hiring bans. 3
Some employers, especially those in the healthcare field, argue that policies against hiring smokers address a perceived disconnect between a business’s core values and the conduct of its employers. For example, Cleveland Clinic CEO Delos “Toby” Cosgrove explains that employing physicians and other medical personnel who smoke is counterintuitive to the clinic’s anti-tobacco message.4 According to Cosgrove, while he initially received negative feedback when the clinic implemented the policy, after 5 years in practice, employees now “thank” him for it. 5
ARE HIRING BANS AGAINST SMOKERS LEGAL?
The short answer: it depends. No federal law exists that protects tobacco users or entitles them to equal protection under the law in hiring decisions. Specifically, the Equal Employment Opportunity Commission does not recognize smokers as a “protected class.” Federal Courts have held that smoking is a not a constitutionally protected right. 6Nicotine addiction resulting from tobacco use is not considered a disability under the ADA.7 On the state level, 21 states currently allow employers to impose hiring bans on smokers. However, 29 states, as well as the District of Columbia, have enacted legislation prohibiting employers from implementing hiring bans against smokers. Most of the state laws expressly prohibit discrimination against tobacco users (for example: Connecticut, District of Columbia, Illinois, New Jersey, North Carolina, South Carolina, Virginia), while others simply prohibit discrimination based on legal, off-duty conduct (California, Colorado, New York, North Dakota and Wisconsin). Most of the state laws set out the following exceptions: 1) where the employer is a non-profit entity whose primary purpose is to discourage the public’s use of tobacco; or 2) the smoking restriction relates to bona fide occupational requirements.
State laws notwithstanding, an estimated 6,000 employers in the United States have implemented a ban on hiring smokers. In addition to the University of Pennsylvania Health System and the Cleveland Clinic, companies that have policies of not hiring smokers include Baylor Health Care System, Scotts Miracle-Gro, Union Pacific Railroad and Alaska Airlines.
WHAT DOES A “GOOD” POLICY AGAINST HIRING SMOKERS LOOK LIKE?
Implemented in 2007, the Cleveland Clinic may hold the “gold standard” for the well-written policy for not hiring smokers. Applicants are given a drug test, which includes screening for nicotine. If an applicant fails the nicotine drug-screen, he or she is offered free stop-smoking counseling. Those who are successful in quitting are encouraged to reapply (and re-test) after 90 days. A second positive test for nicotine, however, precludes hire. 8
Baylor Health Care System implemented a similar policy, with one major difference. Beginning January 1, 2012, applicants who test positive for nicotine must fund their smoking cessation efforts on their own and then may reapply after 90 days.9 Follow-up screening for both the Cleveland Clinic and Baylor Health Care System policies, which can be achieved through random drug testing, is necessary to ensure employees have not slipped back into the habit. These policies can be expensive for employers, especially if the employer “foots the bill” for the smoking cessation efforts. Proponents would argue, however, that the cost of the policy is negligible compared to the costs associated with employing tobacco users.
ADVICE FOR EMPLOYERS
Employers considering implementing a ban on hiring smokers should proceed with caution. First, make sure your business operates in one of the 21 states without legislation protecting smokers in the workplace (or make sure your business fits into an exception carved out by your state’s legislation). Second, weigh the benefits of such a plan against the costs associated with implementing it, which may include a backlash from your workforce and the community that supports your business. Third, draft a thoughtful policy that your Human Resources Department can adhere to. Fourth, keep an eye out for case law interpreting the ADAAA’s position on nicotine addiction. While the smoke may never clear regarding the ethics of hiring bans against smokers, federal guidance on the legality of such bans could be just over the horizon.