Banning Smokers May Harm Your Company's Health

Listed below are my top 10 reasons that employers should think before jumping on the bandwagon to adopt a “smokers need not apply” rule:

1. The slippery, smoky slope. If employers decide to exclude employees who smoke at home, what is next? Banning those who drink alcohol, eat fast food, gamble or ride motorcycles? It may make more sense for all involved to focus on how well the employee does his or her job, as opposed to what legal lifestyle choices he or she makes outside of work.

2. Constricting the candidate pool. About 25% of adults in the United States are smokers. This policy eliminates all such smokers from the candidate pool, statistically guaranteeing that your company may not be able to hire the best candidate for the job one out of every four times.

3. Enforcement concerns. If an employer adopts a “no-smokers” policy, then it should plan on enforcing it. This is a logistical challenge that should not be overlooked. Some employers have adopted random screening of blood or urine to detect tobacco use. Others require regular sworn oaths. Does your company really want to become Big Brother? These are headaches and dilemmas that most employers want to avoid, not voluntarily undertake.

4. Privacy concerns and claims. Plaintiffs' class action lawyers are starting to collect employee complaints about these policies. They allege that requiring employees to disclose whether they engage in lawful activity, like smoking, inside of their homes and outside of the workplace is an unlawful invasion of privacy. Although no such claim has yet prevailed, the argument is certainly plausible, and employers that adopt such policies should be aware of the possibility of such lawsuits.

5. It may be illegal. Currently, 29 states, including New Jersey, prohibit employment discrimination against smokers. Any multistate employer that adopts a policy restricting employment rights of smokers will have to exempt employees in some states but not others, creating unequal policies for workers, depending on work location. Moreover, these companies will have to pay their lawyers to keep up with new developments or risk violating the law and employee rights.

6. Health insurance costs. One of the best arguments for workplace bans on smokers is that smokers are, on average, less healthy than nonsmokers. Consequently, smokers have 18% higher health care costs, according to the Centers for Disease Control and Prevention. The simpler and more effective way to deal with this cost issue is to charge higher health insurance premiums for smokers so that they pay for their own risky behavior. This is the solution used by hundreds of prominent companies, including PepsiCo, Macy's and Gannett.

7. It's better to take positive steps to promote employee health. If employers really want to make their employees healthier, there are many positive ways to incentivize healthier lifestyles, including fostering employee affinity groups that
promote healthy activities such as walking, bicycling, running or hiking.

8. Opposition to these policies. Surveys repeatedly confirm that the vast majority of Americans oppose workplace prohibitions against hiring smokers. Consequently, companies that adopt and publicize such policies are alienating the majority of Americans ' their customers and their potential employees, including nonsmokers. Thus, deciding whether to adopt such a policy should include a discussion with the company's public relations and marketing functions.

9. Ban smoking breaks, not smokers. Nothing in the law requires employers to provide smoking breaks to employees. Therefore, if the issue is the alleged loss of productivity due to excessive smoking breaks, employers should require that smokers live by the same rules as nonsmokers, and limit or eliminate breaks for smoking.

10. Disparate impact. These policies hit the poor the hardest. Tobacco use is highest among low-income workers. As a result, when an employer adopts a “no-smokers” policy, it affects low-income workers the most.

Michael D. Homans is a labor and employment law shareholder at Flaster Greenberg in Philadelphia. He can be reached at [email protected]. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.

Companies have been attracting a lot of headlines lately by adopting new policies that prohibit the hiring of smokers. Proponents of these policies recite a number of benefits for the organization and the workforce, including promoting employee health, lowering health insurance costs and improving employee productivity. Among the employers adopting these policies have been Humana, Geisinger Health System, Alaska Airlines and Union-Pacific Railroad. An estimated 6,000 companies across the country refuse to hire smokers.

What the Law Says

With the exception of states that ban discrimination against smokers (such as New Jersey), employers are entitled under the law to choose not to hire smokers. And for many employers, especially those in health care, banning smokers is consistent with their missions and makes a lot of sense. Nevertheless, for a variety of reasons set forth below, a “no-smokers” rule may create a variety of unintended and undesirable consequences. Perhaps most disturbing, such a policy takes the unprecedented step, for most employers, of regulating lawful, off-duty conduct by workers.

Listed below are my top 10 reasons that employers should think before jumping on the bandwagon to adopt a “smokers need not apply” rule:

1. The slippery, smoky slope. If employers decide to exclude employees who smoke at home, what is next? Banning those who drink alcohol, eat fast food, gamble or ride motorcycles? It may make more sense for all involved to focus on how well the employee does his or her job, as opposed to what legal lifestyle choices he or she makes outside of work.

2. Constricting the candidate pool. About 25% of adults in the United States are smokers. This policy eliminates all such smokers from the candidate pool, statistically guaranteeing that your company may not be able to hire the best candidate for the job one out of every four times.

3. Enforcement concerns. If an employer adopts a “no-smokers” policy, then it should plan on enforcing it. This is a logistical challenge that should not be overlooked. Some employers have adopted random screening of blood or urine to detect tobacco use. Others require regular sworn oaths. Does your company really want to become Big Brother? These are headaches and dilemmas that most employers want to avoid, not voluntarily undertake.

4. Privacy concerns and claims. Plaintiffs' class action lawyers are starting to collect employee complaints about these policies. They allege that requiring employees to disclose whether they engage in lawful activity, like smoking, inside of their homes and outside of the workplace is an unlawful invasion of privacy. Although no such claim has yet prevailed, the argument is certainly plausible, and employers that adopt such policies should be aware of the possibility of such lawsuits.

5. It may be illegal. Currently, 29 states, including New Jersey, prohibit employment discrimination against smokers. Any multistate employer that adopts a policy restricting employment rights of smokers will have to exempt employees in some states but not others, creating unequal policies for workers, depending on work location. Moreover, these companies will have to pay their lawyers to keep up with new developments or risk violating the law and employee rights.

6. Health insurance costs. One of the best arguments for workplace bans on smokers is that smokers are, on average, less healthy than nonsmokers. Consequently, smokers have 18% higher health care costs, according to the Centers for Disease Control and Prevention. The simpler and more effective way to deal with this cost issue is to charge higher health insurance premiums for smokers so that they pay for their own risky behavior. This is the solution used by hundreds of prominent companies, including PepsiCo, Macy's and Gannett.

7. It's better to take positive steps to promote employee health. If employers really want to make their employees healthier, there are many positive ways to incentivize healthier lifestyles, including fostering employee affinity groups that
promote healthy activities such as walking, bicycling, running or hiking.

8. Opposition to these policies. Surveys repeatedly confirm that the vast majority of Americans oppose workplace prohibitions against hiring smokers. Consequently, companies that adopt and publicize such policies are alienating the majority of Americans ' their customers and their potential employees, including nonsmokers. Thus, deciding whether to adopt such a policy should include a discussion with the company's public relations and marketing functions.

9. Ban smoking breaks, not smokers. Nothing in the law requires employers to provide smoking breaks to employees. Therefore, if the issue is the alleged loss of productivity due to excessive smoking breaks, employers should require that smokers live by the same rules as nonsmokers, and limit or eliminate breaks for smoking.

10. Disparate impact. These policies hit the poor the hardest. Tobacco use is highest among low-income workers. As a result, when an employer adopts a “no-smokers” policy, it affects low-income workers the most.

Michael D. Homans is a labor and employment law shareholder at Flaster Greenberg in Philadelphia. He can be reached at [email protected]. This article also appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.