To improve health and cut costs, a large corporation has begun firing smokers. But two attorneys are suggesting a better way.
January is traditionally a month in which people resolve to change their habits. Those who overeat try to diet. Those who disdain exercise suddenly discover the corner gym. And those who smoke …well, if they work for lawn products maker Scotts Miracle-Gro, they might get fired.
Scotts, with 5,300 workers employed nationwide, has instituted a strict no-smoking policy. Simply put, if you smoke at work or even at home, it can cost you your job. The tool used to find out is tobacco use testing, required of all new hires and done randomly on the existing workforce.
Scotts has proved it isn’t kidding around. A Massachusetts worker has already lost his job and is now suing the company.
Firing Smokers Legal in 21 States
He’ll likely find, however, that the policy is legal in his and 20 other states, including Scotts’ home state of Ohio. The rest prohibit adverse job actions based on use of legal products, including tobacco. Current federal law doesn’t mention the issue.
Behind the policy, says Scotts, lie concerns for employee health and for the company’s healthcare costs. Management has made it clear it prefers to terminate smoking, not employees. To that end, the company sponsors smoking cessation classes and provides counseling and nicotine patches at no cost to workers.
Scotts’ solution may be extreme, but so are the problems of smoking. Studies by the National Business Group on Health calculate that each smoker costs employers nearly $4,000 more in added health insurance premiums and other costs each year than does a nonsmoker. The human toll exacted by cancer and other diseases is far greater… an average of 14 years lost off the average life span.
Is there a legal way to discourage smoking, one that carries more weight than education but that is less drastic than firing?
A Less Drastic Answer than Termination
According to Attorneys Steven J. Friedman and Lisa C. Chagala of the law firm Littler Mendelson, P.C., the answer is yes. It’s by providing a reward in the form of lower health insurance premiums for nonsmokers. To do so, however, requires getting around provisions of the Health Insurance Portability and Accountability Act (HIPAA) that prohibit discrimination in premiums based on a health condition. For smoking, however, there is something of a loophole. “HIPAA provides an exception by permitting wellness programs,” write Friedman and Chagala, “provided that certain requirements are met.”
Those requirements:
1) The “reward” [reduction in premiums] cannot be more than 10% to 20% of the total cost of coverage.
2) The program must be designed to promote health or prevent disease.
3) The program must be available to all similarly situated participants.
4) A reasonable alternative must be available for those for whom it is medically inadvisable to try to meet the standard. The alternative must be disclosed in all program materials.
It is unfortunate that after all these years of the public and private sectors heralding anti smoking legislation that more business’ and even insurance companies do not offer smoking cessation information/products nor cover the expense of such. What other ‘addiction’ is left uncovered by medical insurance and ADA? Let’s get to the core of the problem, where there is money to be made (the cost of the product, tax revenue and investment opportunities) no government authority is going to step up to the plate and act.
The mind set of this country is becoming dangerously set on economics as the deciding factor to resolve any issue. There is increasing publicity about the financial costs of obesity. Will employers soon be able legally to set weight guidelines and dismiss those who do not meet those standards? We are becoming a country all too willing to give up other peoples civil rights to create the illusion of well being…be careful YOURS may be next….
What is next? I am not a smoker but will the next issue be weighing in employees to make sure they are not overweight. This causes just as many health problems as smoking.
Their employees can drink themselves silly at night, as long as they do not smoke a cigarette with the beer?
An alcoholic is likely to die 12 years sooner than his nonalcoholic cohorts.
Has the Scott’s company also issued mandatory alcohol testing? As we all know, the amount of people killed on the highways each year by impared drivers is staggering. What is the added cost of alcohol related illnesses to insurance costs?
I am wondering if they have also banned all products that contain sugar and fats. Did they do the research to find out how much more insurance cost is added every year for those with diabetes and heart problems related to eating habits?
While I can not take an extra break to smoke (outside), I can visit the snack machine, and take in all of the candy and donuts I want.
This is ridiculous. What’s next. And how many of those making these decisions go home and have a martini or stop at one of the better restaurants and have a drink with dinner – or two or three – and then drive home. Probably more than they care to admit. Doesn’t being a good employee count for anything anymore? Even if they don’t smoke on the job, they are fired for smoking at home. Is this not a violation of their right to privacy? Its not like they are going home and selling illegal drugs are doing meth or heroin. And How many of the upper officials test themselves? Glad I don’t work for this company. Next they’ll decide eating beef is a reason for firing someone because one of them become a vegetarian.
His costs, although he thinks this is true, are not related to cigarette induced cancers! They are more likely the result of “accidents” in general and pregnancies and the related costs therein.
But, of course, what is good for the goose is good for the gander right? Go after the obese, the diabetic, the fertile!! These too are preventable afflictions/diseases are they not?
Shame on any company that would treat another human being like that.
I applaud any company that provides valuable incentives for bettering ourselves, but to play out a threat and take someone’s job, their livelihood??
God Bless us all and protect us from this sort of employer………………
I am appalled by actions such as those taken by Scotts. If the company really has concerns about its employees’ health, firing them isn’t a great way of showing it. After all, people often suffer physical and emotional breakdowns after being fired from a job. Don’t they care about that. I can’t help but believe the Scotts management gets some perverse pleasure in carrying out this policy.
We have to be careful this is a slippery slope. If Corporations are able to site healthcare savings and expense as a reason for firing someone in a particular category – then what happens to a person who is overweight. It can be said that obesity causes, diabetes, heart problems, and a host of other ailments that will increase the employers premiums and cost them additionally when they are re-rated for having at-risk employees. It is troubling…while I do not disagree that Corporations have a right to try and keep their overhead at a minimum. I am for programs the help people as are the best way. The concern, has to do with those two reasons which can be used to justify quite a lot, age among other things – so, if it’s ok for them to do it to smokers, then the logical next step would be to look at all your categories. Then it could be reasonable argued that it’s ok to do the same with overweight people, older workers, and others too. Both of those categories come with an increase in insurance premiums. In California some people are unable to get health care insurance at any cost because of being in a particular category or being considered high-risk because of their health. We have a healthcare crises as it is, do wish to add to it. And finally this is America, someone always pays, if Corporations and their employees do not, then the States will have to and that means ultimately, the cost will have shifted to the tax payer. Before we leap and applaud I think we should be tread very very carefully. I sincerely hope that employee wins his case.
Scotts should be made to understand the problem,i.e. smoking,from medical and psychological points of view. I have come across smokers who actually curse their smoking mentors and the day they started smoking and is equally true those in Scotts are nothing different.I believe, from a social worker’s perspective, that they will appreciate if the organisation decides to come up with a program that will see the situation from their minds’ eyes and assist them get out of the ADDICTIVE habit. This act is initially a passing fancy and at a later stage ADDICTIVE for which smokers have nothing to do about it.
Those implementing this irrational policy should stop treating workers the way they deal with their two-year old boys.They should appreciate basic human rights to choices and accordingly respect such choices for the good of human and industrial relations.
By the way, why only smoking? Beware! Everybody in the organisation is having his/her own ‘smoking’.
Issah Mwambasi, a sympathetic non-smoker
I admire Scotts and wish we could do the same. Our smokers are the least productive people on our staff and they look like fools outside of the building when everyone else is working. I love they way they have to put one foot up behind them on the building too. Yes, it is an addiction and yes, medical insurance will help cover it, but if the employee doesn’t want to do anything about it, they need to take responsibility for the consequences.
I work in a casino where there are many co-workers who smoke. We have a area outside the building where they can smoke also. It looks pathetic each time we have to walk through that area when going to work. I agree that they are not as producitve, they can barely make it to there next break because thats all they think about is the next ciggerate they get to smoke. We really need to crack down on smoking at our employment. I believe we could accomplish more if they cracked down on this.
Maybe we should look at the insurance companies as well. Most aids on the market to stop smoking are not covered by insurance.
From an employers viewpoint, not only do we pay substantially higher rates for smokers Medical Insurance Rates, there is many more sick days, colds, and they smell like smoke.. the worst is the excessive breaks being taken by smokers, and workloads that non-smokers have to take up the slack for. Non-smokers work harder, don’t take as many breaks, and are by far more productive employees. If you don’t believe it- Start your own business, pay payroll, and Medical Insurance, and of course be ready to have to hire 1.3 smokers to every 1 smoker you hire. Good luck.