Employers are increasingly concerned about the health of their workforces for many good reasons. One is that poor health costs them money, says attorney Antoinette Pilzner. There are substantial expenses related directly to health care, and additional costs from indirect issues, such as absenteeism, presenteeism, workers’ compensation, and productivity.
A big part of the problem is that the current system enables unhealthy behaviors, Pilzner says. Employees can choose to be as unhealthy as they want, and whatever the consequences, the employer picks up the tab.
So employers are turning to wellness programs. But how far can such programs go? May you prohibit smoking, even off duty? Pilzner, a shareholder in the Ann Arbor, Michigan, law firm, Butzel Long, P.C., answered the question in our sister publication, the HR Manager’s Legal Reporter.
Can an employer prohibit smoking off duty?
Since smoking is usually the number one target of any wellness program, many employers would like to ban employee smoking entirely, even away from work.
Federal law does not currently block an employer from prohibiting an employee from smoking off duty. However, more than half the states have laws that do prohibit an employer from discriminating against an employee based on off-duty legal behaviors. Smoking, of course, is legal.
The best practice for implementing a smoking ban covering off-duty conduct—assuming your state permits a ban—is to have a specific policy that clearly makes the smoking ban a condition of employment as part of the employer’s health and safety practices. And that notifies employees how the policy will be enforced and the consequences of violating the policy.
You might, Pilzner says, require a written statement: “I’m not smoking. and I know if you find that I do, I could be fired.”
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How can you enforce a smoking ban?
Numerous issues arise in attempting to enforce an off-duty no-smoking ban, says Pilzner.
First, it is not perfectly clear if testing for nicotine is a medical test, and whether it would be legal. Beyond that, off-duty smoking rules are just tough to police and enforce. And then there are employee relations issues to consider.
Is testing for smoking legal?
There may also be ADA constraints on an employer’s ability to administer nicotine testing, says Pilzner. Under the ADA, once employment has commenced, a medical examination must be job-related and consistent with business necessity. It is unclear how the courts would interpret that language with regard to a test for nicotine use.
At least one federal court has held that an off-duty smoking ban for employees is a legitimate restriction for health and safety reasons. Under that reasoning, it would seem that testing employees for evidence of nicotine would be similar to random or reasonable cause alcohol testing, which is an acceptable medical test because it is considered to be consistent with business necessity.
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What employee relations issues does an off-duty smoking ban create?
Beyond the testing issues are employee relations issues. “Believe me, HR is going to hear about it,” Pilzner says. Nonsmoking policies create employee morale issues related to workplace privacy—even among nonsmokers. (“What will you restrict next year? Fast food? Jellybeans?”) So an employer must evaluate whether imposing off-duty restrictions and enforcing them with employee testing is consistent with its corporate culture.
What about voluntary programs, often offering incentives? They can be tricky. We’ll cover them in tomorrow’s Advisor and tell you about a remarkable way to jumpstart your wellness program.