Smokers Need Not Apply?

Smoking has become a very important topic for employers recently. More and more employers, particularly in the healthcare industry, are refusing to hire smokers. This is by no means a recent development, as companies like Turner Broadcasting have been refusing to hire smokers for over twenty years. However, in the last few years, with rising healthcare costs, employers are seeing a ban on hiring smokers as a way to reduce costs.

It is common knowledge that smokers are one source of high costs for many employers. According to the American Lung Association, smokers cost the economy over $193 billion each year, and employers could save an estimated $3,400 per year for each employee who quits smoking. Insurance rates are significantly higher for smokers and the average smoker takes four 15-minute smoke breaks per day, resulting in an average of one hour of lost company time.

While hiring a smoker can result in higher costs, employers also incur costs to prevent hiring a smoker. For example, employers must incur the monetary cost of administering a urine test designed to detect nicotine. Once an employee is hired, if the employer wants to enforce its no smoking policy it has to institute monitoring procedures, which will add additional costs. In addition, banning the hiring of smokers may have a detrimental effect on employer/employee relations. A recent poll conducted by the Pittsburgh Post-Gazette indicated that 62% of those responding did not support employers screening for smokers. While the sampling size of 659 respondents was fairly small, the overwhelmingly negative response shows that employee morale would be negatively affected by such screenings.

Employers may also find themselves facing legal costs as well if they refuse to hire smokers. Twenty-nine states have laws specifically preventing an employer from discriminating against smokers, or prohibiting discrimination based on lawful off-duty activities, like smoking or drinking alcohol. In addition to laws strictly prohibiting conduct based solely on whether an employee, or potential employee, smokes, a number of federal statutes may come into play. For example, the Americans with Disabilities Act makes it unlawful to discriminate against anyone based on their disability, with regard to hiring, firing or promoting. Courts have recognized alcoholism and drug addiction as disabilities under the ADA, which begs the question whether nicotine addiction would be considered a disability as well (although the current limited case law indicates that nicotine addiction would not be considered a disability). Finally, smokers could attempt to bring a claim under Title VII of the Civil Rights Act of 1964, claiming disparate treatment due to their choice to smoke.

While employers’ reasons for banning the hiring of smokers are understandable, they are likely outweighed by the other costs involved. Nonetheless, employers may be able to curb employee smoking through incentive-based programs, that include offering discounted insurance premiums for employees who pledge to lead a smoke-free lifestyle and by offering smoking cessation programs. Alternatively, employers may offer disincentives to those who smoke, like raising the premiums they pay toward health insurance or reducing the rate at which they accumulate leave. Other measures aimed at reducing employee smoking include phasing out areas where employees can smoke, banning smoking on company property, or even banning smoke breaks, so long as such bans do not infringe on breaks mandated under state or federal law.

Without a doubt, the suggested solutions will not work in every workplace, as an office environment, for example, is significantly different from a construction site. The proper solutions for reducing or eliminating smoking in an employer’s workforce will vary, and any changes in employee policy should be discussed with legal counsel prior to implementation to ensure that they comply with both federal and state law, particularly because state law can vary significantly.