Can We DO That?! Smoke Free Workers?

Just this month I came across another article announcing an employer’s decision to hire only non-smokers. I remember a call I received several years ago asking if the company’s CEO could implement the same type of policy or practice. The CEO hated the smell of cigarette smoke and did not want to be around people who emanated the scent.  As employers, “Can we do that? “ Of course the answer is the infamous, “It depends.”  As of this writing at least 29 states plus the District of Columbia prohibit discrimination based on an individual’s off-duty use of tobacco. Some extend that protection beyond the use of tobacco and may include other lawful activities, also known as lifestyles legislation. 

We know what these employers are doing. A key question might be, “Why?”  Why does an employer care what I do on my own time in my own space?  Is it just an urge to demonstrate corporate caring by way of exerting paternalistic power?  Whose business is it anyway?  That may be a critical answer: business.  One business driver related to employing non-smokers is or are at least may be perceived to be health care costs.  While the figures vary they are surprisingly close.  Estimates seem to range from about $5,800 to $6,000 in increased health care costs to an employer for smokers as compared to non-smokers.  Another business driver might be concerns about reduced productivity as a result of time spent away from “work” to smoke. It is a concern addressed in the U.K. as well as the U.S.

To address the latter some employers have considered permitting vaping at work.  This would permit employees to continue to engage in productive work activities without having to leave the work area to smoke a traditional cigarette.  Smokers might also counter that no more time is lost from work by them than by non-smokers who are just as unproductive while attending to calls from children and family members; joining a coffee klatche; getting drinks and snacks; and taking bathroom breaks…you name it.

Just for the fun of it, let’s go down this slippery slope. What about all the other “bad” conduct in which applicants or employees engage?  To name just a few: poor eating that leads to high cholesterol; lack of exercise that contributes to obesity or heart disease; excessive use of alcohol or binge drinking; too much salt contributing to high blood pressure.  What about all the conduct about which you remain blissfully ignorant?  How will you know, monitor and assess these activities?  Will employees soon be lining up to submit to testing for a full panel and litany of tests? Where do we draw the line?

So what’s YOUR business case?  If you decide you don’t want to employ smokers ensure you understand the business needs that are driving you to that conclusion.  Consider how that will impact your applicant pool and ensure you don’t lose any highly qualified candidates in the process.  Then stay tuned (and talk to your company’s legal counsel in the interim).  As employers consider this issue as a part of an overall workplace wellness program the U.S. EEOC is doing the same.  They may be issuing updated guidance on the impact of such programs as it relates to compliance with the ADA, GINA and/or HIPAA!  

To read more from Christine Walters, check out FiveL.

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