Q: Our company is considering implementing a policy that would make individuals who smoke ineligible for employment. In doing so, we would save a substantial amount of money on our insurance premiums. Can we do this? If so, how do we monitor employees who claim they have quit smoking?
A: Many industries are implementing or considering “no-smokers” policies. Basically, the premise is that insurance companies are lowering their premiums for companies that have policies prohibiting employees from smoking. However, these are not your typical “no-smoking- in-the-workplace” policies. These policies prohibit employees from smoking ― period, regardless of whether they’re on the job. In addition to lowering health insurance premiums, many employers argue that hiring smokers increases production costs because of smoke breaks and high absenteeism from smoking-related illnesses.
In addition to prohibiting the hiring of smokers altogether, there’s a trend toward charging smokers higher premiums for their health insurance. The hope is that doing so will motivate workers to stop smoking on their own, thus lowering health care costs.
While state and federal law prohibits discrimination in hiring based on a number of protected characteristics, in most jurisdictions, refusing to hire smokers doesn’t constitute unlawful discrimination. Several states allow employers to screen job applicants for signs of smoking. Some employee groups, however, are prepared to argue that off-duty smoking bans violate the federal Employee Retirement Income Security Act because they interfere with the attainment of a right under a benefit plan ― the right to health benefits.
The most common way to monitor whether employees and applicants smoke outside of work is use standard, random, or preemployment drug tests to test for nicotine. Employers should be aware, however, that small concentrations of nicotine metabolites may be found in the saliva or urine of nonsmokers who have been exposed to tobacco smoke for several hours. The same is true of someone who is using smoking-cessation products such as a nicotine patch or nicotine gum.
Thus, in addition to banning smokers from the workplace, a no-smoking incentive may also ban individuals who are trying to quit smoking or who regularly associate with smokers and, consequently, are exposed to secondhand smoke. While that may detract from the argument for banning smokers from the workplace, the fact that nonsmokers involuntarily assimilate the same chemicals from smoke-contaminated air as smokers do by smoking has been cited as another reason for maintaining a tobacco- free work environment.
It is against that backdrop that no-smokers policies are being implemented. Most employers use some sort of “grandfather” clause to retain current employees who smoke. The emphasis, therefore, is on applicants and new hires. Unless preemployment drug screens are used, applicants will have to be taken at their word. Enrollment forms for health plans and life insurance benefits typically will contain a request for information on smoking habits, and failure to respond truthfully may result in a denial of benefits or even withdrawal of the employment offer. In addition, insurance benefits could be denied if a new employee refuses to submit to a urine or saliva test as a prerequisite of obtaining benefits.
If your company is inclined to implement a no-smokers policy, then you should, at the very least, precede its implementation with the dissemination of information to employees about what you’re trying to accomplish and why. If your workforce is unionized, it would be best to get the buy-in from the union as well. If the program is implemented in a way that protects the jobs of current employees who smoke and the terms of the policy are made clear to new hires, it just might take off without too much “smoke”!
Susan Hartmus Hiser is a shareholder with Vercruysse Murray & Calzone, P.C in Bingham Farms, Michigan, and a contributor to Michigan Employment Law Letter. She may be contacted at shiser@vmclaw.com.
If adopting policies that would ban the hiring of smokers is permitted, then companies will next try to ban the hiring of people who consume alcohol, have pre-existing health conditions, are in their childbearing years, are overweight or obese, etc. based on a need to reduce insurance costs. In other words, all the legal protections barring discrimination in hiring could be circumvented based on a health or monetary basis, but it would still be discrimination.
Guess what? Discriminating against smokers is an “approved” stance. There are certain ‘prejudices’ that stand in today’s world. Negativity and shunning of smokers is one of those approved stances. As some “social justices” are pressed up against all of us and “rights” are thrown around pretty freely if a certain vocal segment of the population agrees with it, others are just as maligned. Smoking is one of them!
Thank you, Jauharah. What will it be next? Too much colestrol ? Poor eating habits ? Smokers take the brunt of the discrimination in this scenario, but what’s next. Those of you who are ready to condemn the smoker, or the person who uses alchohol, or numerous others that don’t measure up to your high standards must remember that when this ball starts rolling, everything’s fair game.
Let he who is without blemish cast the first stone……….
Jauharah is wrong-there is no “slippery slope”. The persons who referred to who may need protection are already protected by Title VII or the ADA; even “alcoholism” is now a “disability” under the ADA. Smoking is a voluntary, unhealthy, self-destructive act, and these people don’t need special protection; to the contrary, public policy discourages smoking and we spend millions on smoking cessation and prevention programs.
I have been a smoker for 35+ years (back when you could smoke in an office–which seems strange to me now). I do not take smoke breaks (never have), lunch is eaten at my desk (no lunch smoke break). I have never missed a day of work because of my smoking. Actually the last time I was sick (just a cold) was over 2 years ago. I am an educated, dedicated employee who happens to smoke, and I pity the employer who would pass me over.
The leading cause of death in the USA today is diet/nutrition related. The effects of this are not just heart-related disease, but most degenerative human diseases and cancers that we now face. Health costs for these malignants tower over the abstract cost of treating a smoker. Would anyone really pass up an motivated excellent applicant that smokes, for a morbidly-obese, chronically-fatigued nonsmoker for the cost of saving money on their health insurance by having healthier employees? I can’t think of that without laughing.