Companies Ban Smokers, and Those Reeking Of Tobacco Smoke

Oct. 4, 2012 - PRLog -- WASHINGTON, D.C. (October 4, 2012): Beginning this January, two giant health care systems will go beyond refusing to hire smokers by not permitting their employees to smell of tobacco smoke in the workplace.

Although refusing to hire smokers is nothing new and has been a growing practice for many years, this is one of the first companies to ban employees even smelling of tobacco smoke, says the man who started the modern nonsmokers' rights movement by first getting smoking restricted and then banned on airplanes, and subsequently in many workplaces and public places.

Henry Ford Health System and Beaumont Health System in Detroit will join Oakwood Healthcare System in Dearborn, Crittenton Hospital Medical Center in Rochester, and the Lansing-based Sparrow Health System in banning smokers and those smelling of tobacco smoke.

Earlier, Baylor Health Care System in Texas, the Hollywood Casino in Toledo, Ohio, and Geisinger Health System in Pennsylvania joined many other companies in following FORBES suggestion – "Don't Hire Smokers" – and thereby saving perhaps $11,000 per worker.

Even more employers would follow this escalating trend if they know how easy it was to avoid so-called smokers' rights laws, says public interest law professor John Banzhaf, who helped start the trend and defend it in court.

Although estimates as to the cost savings vary from several thousand dollar a year per worker and upward, a judge who received testimony on the issue under oath concluded that a typical smoker can cost his employer over $11,000 a year (in 2012 dollars), says Prof. Banzhaf, of the George Washington University Law School, who participated in the legal proceeding.

In addition to slashing costs – expenses which would otherwise have to be borne by the company's nonsmoking employees in the form of reduced medical care coverage and/or lower salaries – many businesses are concerned about the adverse image having employees who smoke can present.

That's why the trend is strongest among health-related companies, says Banzhaf, suggesting that patients are often turned off if they are treated by a doctor, nurse, or other professional reeking of tobacco smoke, or simply see employees standing on hospital grounds smoking. The same reaction can occur upon encountering smoker employees, or those smelling of smoke, at gyms, health spas, counseling centers, insurance companies, etc.

However, especially with rising health insurance costs, and worries that the costs will go even higher under health care reform, companies as diverse as Alaska Airlines, the Union Pacific Railroad Company, the Kalamazoo Community College in Michigan, Weyco, a Michigan-based benefits administration company, and Scotts Miracle Gro have – like the World Health Organization – simply stopped hiring smokers. Indeed, looking ahead, CBS-TV hailed Scotts' policy as a "national model" and a "new reality."

Many employers are reluctant to cease hiring smokers, incorrectly believing that it constitutes unlawful discrimination. But, notes law professor Banzhaf, except in those states which have so-called nonsmokers' rights laws, it is perfectly legal because being a smoker – unlike being Black, female, etc. – is not an immutable characteristic, and numerous courts have upheld such policies, whether adopted by private companies or even by governmental bodies as to which both the state and federal constitutions apply.

Federal laws permit the practice because they don't recognize smokers as a protected class, says Chris Kuzynski with the U.S. Equal Employment Opportunity Commission.

Even in those states with nonsmokers' rights laws, the statutes are rarely if ever enforced, and are also full of loopholes, as both Banzhaf and the American Medical Association (AMA) have pointed out.

There are also many ways to achieve a smokerfree workforce – similar to a drugfree workforce – without violating any of these laws, says Banzhaf.

For example, as the AMA's American Medical News has pointed out, even if state laws prohibit employers from outright refusing to hire smokers, no law requires companies to provide any smoking breaks, nor to permit smoking anywhere on company property, even outdoors on its grounds or campuses, in cars in company parking lots, etc. Thus, as a practical matter, not permitting smoking breaks, and banning smoking anywhere on company property (even inside cars), will probably deter all but the most determined smokers from applying or even remaining employees.

Another approach, which has been used successfully for many years in New Hampshire (which has a smokers' rights law) is to prohibit anyone from coming onto the property who has any detectable odor of tobacco smoke residue about him. Unless a smoker is willing to bathe, shampoo, change clothing, brush his teeth, and use mouthwash after each cigarette, he probably cannot meet this stringent workplace requirement and need not be hired or employed, despite the law, notes Banzhaf.

Also, many of the smokers' rights laws provide only very limited protection. Some, for example, only prohibit companies from making "no smoking" a condition of employment, and do not prohibit paying smokers less, providing them with fewer benefits, etc.

Also, some smokers' rights statutes apply only to government employees, leaving private companies free to not hire smokers. Other statutes apply to and protect only current employees, permitting companies to adopt a "no smokers" policy for future hires, an option which might be especially attractive now with so many very qualified unemployed workers competing for a limited number of positions.

Furthermore, notes Banzhaf, some smokers' rights laws specifically permit companies to charge smokers more for health insurance. Under federal law, smokers can be charged more for their health insurance coverage without any need for a company to satisfy the many requirements of "wellness programs" which generally apply to other increased-health-risk problems like obesity – a major benefit for small companies which may not want to meet the many burdens of qualifying. That's because, in a legal ruling obtained by Prof. Banzhaf, the federal government has determined that, while obesity has been classified as either a "health status" or a "disease," smoking is simply a "behavior" which is entitled to no legal protection.

Indeed, already at least 40% of large and medium-sized companies – up from 19% in 2011, and only 8% in 2009 – are expected to charge smokers as much as $2000 more than nonsmokers annually in 2012 for their health insurance, with the percentage expected to rise to almost 50% by 2016.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf