By David I. Weissman
Many employers are seeking to control escalating health care costs and improve worker productivity by implementing policies that promote employee wellness. As a result, policies that discourage employees from smoking have become increasingly popular. Some companies have gone a step further and decided they won’t hire smokers at all. This includes health insurance giant Humana, which recently announced that it will no longer hire workers in Arizona who smoke or use other tobacco products.
Issuing New Policy in Arizona
Humana Inc., headquartered in Louisville, Kentucky, is a leading health care company that offers a wide range of insurance products and health and wellness services. The company employs approximately 1,300 full-time workers in Arizona and is currently adding more than 100 full-time employees to its Medicare call center in Phoenix.
Earlier this summer, Humana announced a policy against hiring smokers and other tobacco users in Arizona, effective July 1. This prohibition applies to all tobacco products, including cigarettes, pipes, chewing tobacco, and cigars. The company will enforce the tobacco ban by testing new employees for nicotine use through a preemployment urine drug screen.
The policy further requires that all new hires agree to abstain from tobacco use while employed by Humana. If they start using tobacco after being hired, they must self-report their use and enroll in a company-provided tobacco cessation program. Although the policy doesn’t require employees hired before July 1 to stop using tobacco, Humana is encouraging them to do so by offering the same free stop-smoking program in conjunction with discounted medical insurance.
Not a New Habit
This isn’t the first time Humana has implemented a no-tobacco policy ― the company implemented a similar tobacco ban in Ohio two years ago. Although Humana didn’t test its new hires in Ohio for nicotine use like it does in Arizona, the company believes the program has worked nonetheless ― 78 percent of its Ohio employees report being tobacco-free.
It’s also not the first time an Arizona employer has decided to stop hiring smokers or otherwise remove tobacco from the workplace. For example, Arizona-based Scottsdale Healthcare and Cancer Treatment Centers of America have implemented policies like Humana’s, and several other Arizona hospitals have policies prohibiting smoking at work. In addition, Maricopa County recently instituted a new health plan that requires employees to submit saliva samples to test for nicotine. County employees who test positive or refuse to take the test must pay almost $500 more for their insurance than their coworkers who are tobacco-free.
A Burning Legal Issue
“No-smoker” policies like Humana’s raise an obvious question: Is it legal for an employer to refuse to hire smokers? In most states, the answer is clearly no. That’s because 29 states (including Kentucky, where Humana is headquartered) and the District of Columbia have passed laws prohibiting discrimination against smokers.
No federal law expressly protects smokers from employment discrimination. That said, the federal ADA Amendments Act of 2008 (ADAAA) makes it much easier for an employee to establish that she is “disabled” under the law. As a result, smokers with breathing difficulties or a nicotine addiction might argue that they are protected under the ADAAA and challenge “no-smoker” policies on that basis.
Bottom Line
According to federal estimates, each employee who smokes costs an average of $3,391 more per year for health care and lost productivity. Thus, it’s not hard to understand why you might consider a stringent antismoking policy like Humana’s. Still, doing so limits your pool of potential employees and may invite litigation by rejected applicants. It also could lead you down a slippery slope of adopting other health-based policies, such as not hiring people who are overweight or have high cholesterol. Before implementing any such workplace policies, consider consulting with your attorney.
David I. Weissman is an attorney in the Phoenix office of Ford & Harrison LLP. Before joining Ford & Harrison, he served as general counsel for two Arizona-based retail companies. If you have a question you’d like him to answer, you can e-mail him at dweissman@fordharrison.com or call him directly at (602) 627-3531.