News Column

How Far Can Business Go in Restricting Smokers?

March 17, 2013

Tim Grant

business, workplace, smoking

More businesses and institutions are creating policies that restrict employees and visitors from smoking on their property. Some are even going so far as to set standards for employees that extend outside of business hours and into their private lives by specifically stating that smokers will not be hired -- period.

Smoke-free workplaces make sense from a business-cost prospective. Smokers are prone to having higher health care costs and more absenteeism. Depending on how many smoke breaks they need each day, smokers also might even be less productive than nonsmokers, in general.

But how far can companies go when it comes to denying employment to smokers or restricting their ability to smoke on the job?

"Smokers are not a protected class," said David Scher, principal attorney at The Employment Law Group law firm in Washington, D.C. "You can't discriminate against people who are over 40, people who are black or people who are gay. But there are no protections for smokers."

However, he said there are two potential problems with companies having an overt policy against hiring smokers.

There could be a less obvious consequence when a company intentionally or overtly discriminates against a class of people for whatever reason. For example, a decision to not hire smokers could mean that you are discriminating against people who are black or over 40 if many people in that category happen to be smokers, he said.

Smokers also are more likely to have medical issues that require medical leave, and companies with policies against smokers could be accused of discriminating against workers with disabilities.

"These are the dangers of an overt policy against hiring smokers. But it is not illegal to have a policy," said Mr. Scher, who represents workers in retaliation, discrimination and harassment issues. He said he has not yet had a case where someone claimed not to be hired because of being a smoker.

Even as there is a growing effort to treat workers fairly in workplace environments regardless of their disposition, there also is a growing trend of companies trying to reduce insurance liability risks and premiums by encouraging workers to lead healthier lifestyles.

The entire University of California system is going smoke- and tobacco-free Jan. 2, 2014, with a couple campuses in the system having already implemented the ban. The ban includes electronic cigarettes as well as regular cigarettes.

The university will not change its policy to ban hiring workers who smoke, but officials there hope that -- upon being made aware of the campus policy -- job candidates who smoke would choose not to work there.

"We are not asking UC faculty, staff, students, visitors and guests to quit smoking. We are only asking that tobacco products not be used on UC property," said Julie Chobdee, wellness program coordinator at University of California, Riverside.

She said the University of California system consists of 10 campuses and five medical centers. At least 100,000 students will be impacted along with visitors, guests, contractors and patients. She said more than 1,000 colleges and universities across the country have already taken similar steps to ban tobacco products and the number is continually growing.

Jerome Thomas Shilling, principal at Mercer, an employee health and benefits firm, Downtown, said many companies are putting policies in place to encourage healthy behavior, but policies that prohibit hiring smokers are not very common.

"It is the most extreme company policy we see out there being implemented," he said. "Hospitals and health care providers were early adopters of the smoking ban. But I am not aware of a lot of employers rushing to do this."

Tim Grant: tgrant@post-gazette.com or 412-263-1591.

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