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Where there’s smoke … can you fire (or refuse to hire)?

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in Discrimination and Harassment,Employee Benefits Program,Hiring

In recent years, more health- and cost-conscious employers have turned their smoke-free workplaces into smoker-free environments.

Many employers are deciding not to hire smokers, screen new hires for nicotine as a condition for employment, impose higher health-benefit premiums for smokers and try to help smokers quit. Policies run the gamut. Examples:

  • Shoe manufacturer Weyco gave employees an ultimatum: quit smoking or be fired.
  • High-end optics lab Kimball Physics bans possession of tobacco on site and prohibits anyone who has used tobacco within the previous two hours from entering its workplace.
  • The Cleveland Clinic, Alaska Airlines and Union Pacific Railroad have stopped hiring smokers.

Some policies are mo­­tivated by pres­sure to increase productivity, on the theory that smokers take more frequent breaks and are out sick more often.

Other employers concerned that smokers incur higher health care costs are requiring smokers to pay more for health coverage than nonsmokers. Others take a “carrot” approach, offering insurance discounts to smokers who participate in smoking cessation programs.

What employers can, can’t do

Employers are free to ban smoking in their workplaces. Taking action based on what employees do on their own time outside of work, however, is much more controversial and raises a host of legal issues.

Thirty states and the District of Columbia have “lifestyle” statutes that limit an employer’s ability to make adverse employment decisions based on what employees or applicants do while off-duty.

Depending on how those statutes are drafted, they may prevent an employer from terminating an employee or refusing to hire an applicant who smokes.

Even in states that don’t have lifestyle statutes, policies against hiring smokers can be challenged under various legal theories.

The American Civil Liberties Union calls no-smoker policies discriminatory because they intrude on prospective employees’ private choices. Dis­crimi­nation lawsuits could also arise if an employer fails to consistently implement its policy and sometimes hires smokers.

Smoking as a disability?

Smokers who aren’t hired may also claim disability discrimination based on an addiction to nicotine.

The question of whether a smoker could make a successful claim under the ADA is not yet settled. The EEOC said in 1995 that it does not view smoking as a disability. But nicotine addiction could be a disability if it substantially impairs a major life activity. Plus, the ADA as amended makes it easier for individuals to prove that they are disabled.

A smoker could also assert (and it would be easier to establish) a claim of perceived disability discrimination—that a company perceived that a smoker would be more prone to miss work due to smoking-related illnesses.

Health insurance incentives

If an employer decides to combat smoking by offering health premium discounts or imposing premium surcharges, it must comply with the Health In­­sur­ance Portability and Accountability Act of 1996 (HIPAA). HIPAA generally pro­­hibits employers from discriminating on the basis of an employee’s health condition in determining premiums.

But, the law recognizes an exception for a “wellness program” that complies with specific HIPAA requirements. That means if an employer offers a smoking cessation program that meets the requirements of a wellness program and a smoker refuses to participate, the employer can impose a higher premium charge on the smoker.

If a smoker finds it unreasonably difficult to stop smoking due to addiction, the employer must provide a reasonable alternative standard, such as a discount in return for attending classes or trying a nicotine patch.

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