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Ban smoking or ban smokers? How far can you legally go?

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in Discrimination and Harassment,Employee Benefits Program,Human Resources

Thirty states and the District of Columbia have established “lifestyle discrimination” laws that prohibit employers from discriminating against employees or applicants based on the person’s off-duty use of tobacco or participation in other legal though controversial activities.

On the federal level, no single law directly tackles such employer bans on smokers. But several laws restrict how employers could enforce such a ban. The Health Insurance Portability and Accountability Act (HIPAA) prohibits employers from discriminating against workers based on their health condition when determining benefit premiums or contributions. HIPAA makes an exception for wellness programs, in which employers can offer incentives or provide education to smokers to help them quit.

Whichever anti-smoking initiatives employers try, all smoking bans must be enforced uniformly. Targeting women, minorities, workers over 40 or the disabled could turn your smoking ban into a smoking gun, and run afoul of federal anti-discrimination law, the ADA or the Age Discrimination in Employment Act.

All these laws allow for “disparate-impact” lawsuits in which affected employees could argue that a ban on smokers affects their group disproportionately. To defend against such claims, employers must show that the ban is being instituted due to business necessity.

So far, the disparate-impact argument against a smokers’ ban (or the business-necessity defense to it) has not been tried in court. On the bright side, courts have consistently rejected nicotine addiction as a disability under the ADA.

WHAT’S NEW

Rising health costs have led employers to beat the bushes for cost savings. Many have begun to target smokers and those with other unhealthy habits. But how far can employers go?

Courts have consistently backed employers who ban smoking in the workplace. Some states and municipalities have passed laws that give employers no choice but to ban smoking.

The move by more employers to employ only nonsmokers, however, has produced a backlash in some workplaces. Employers’ attempts to control employees’ behavior off-the-clock can strike a nerve.

The 30 states that passed lifestyle statutes have done so largely because of employer attempts to turn away smokers. Almost uniformly, the statutes say employers cannot fire, refuse to hire or otherwise discriminate against someone because of his or her use of “a product lawfully sold in the United States.”

Another relatively new development is the emergence of the nonsmokers’ rights movement. Nonsmokers complain not only of inhaling secondhand smoke but also of smokers taking longer breaks and being less productive. Banning smoking on work premises addresses these complaints as well.

HOW TO COMPLY

Employers must first determine whether they live in a “lifestyle statute” state (see box below). Then, employers must decide which type of smoking ban they wish to implement.

A workplace smoking ban limited to employees’ on-the-clock behavior is unlikely to trigger legal trouble as long as you enforce the ban uniformly. Employers may also be able to set different health insurance premiums for smokers and nonsmokers.

If state law permits, employers can implement a ban that controls behavior off-the-clock. But there’s a difference between “can” and “should.”

These off-duty bans often insist that employees not be under the influence of nicotine on the job. Generally that involves the employee not smoking within two hours of coming to work.

But employers should beware that the absence of a “lifestyle statute” in their state is not a green light to ban smokers from the payroll. Nicotine-deprived employees may fight back with invasion-of-privacy lawsuits or other common-law assaults on the ban. Depending on state law, these could have the same effect as a lifestyle statute.

Employers should also weigh the impact of a smoking ban on recruitment, retention and public relations. A kinder, gentler smoking-cessation plan or incentive-laden wellness program may be a better alternative.  

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