Smoking Might Get
You Fired
Recently
Weyco, Inc., a Michigan medical benefits administration
company, made headlines when it adopted a no-smoking policy that required
employees to quit smoking during their private time and/or submit to a
smoking test or be fired. While Weyco's policy
made the headlines, it is not the only company to place such smoking
restrictions. Some argue that such restrictions are the trend of the future
given increasing health insurance costs.
Four Fired For Refusing Anti-Smoking Test
In
2003, Weyco announced its intent to prohibit
employees from smoking even when off-duty. In January 2005, Weyco's Drug, Alcohol and Tobacco Free Workplace Policy
went into affect. The policy specifically says "smoking or otherwise
using tobacco at any time" is prohibited and will result in
disciplinary action up to termination. Weyco's
previous policy only prohibited smoking on company premises.
Failure
to submit to a company smoke/tobacco test is also prohibited and results in
immediate termination. The policy calls for both random testing and testing
based on reasonable suspicion of smoking.
The
policy also specifically states that "employees will be required to
state in writing their intentions regarding continuing their employment in
2005 as a non-smoker. Positions occupied by an employee that
self-identifies as a smoker and/or fails to agree to be a non-smoker by
January 1, 2005 will be considered open effective January 1, 2005."
Furthermore,
"employees not signing the intention to be tobacco free statement will
be excluded from consideration for posted, open positions."
Unannounced
testing took place the first week of January and those who failed the test
were to be terminated effective January 7, 2005.
Four
workers were fired for refusing to take the test to determine if they
smoked cigarettes.
Weyco Feels Policy Successful
Weyco believes the policy has been successful –
even if they did get a lot of negative media attention. Weyco
estimates that about 18 to 20 of the company's 200 employees were smokers
when the policy was first announced in 2003 and that as many as 14 have
quit. Weyco offered smoking cessation help,
including employee meetings, smoking cessation classes, medication and
acupuncture classes.
Weyco has responded that it "has the right
to protect itself from the enormous financial damage that tobacco users
inflict upon society by destroying their own health."
Smoking Costs Employers
The
fact of the matter is that a smoking employee costs the employer more.
According
to the Centers for Disease Control our nation's cost of smoking is $3,391 a
year per smoker - - $1,760 for lost productivity and $1,623 in excess
medical expenditures. The economic burden of smokers is more than $75
billion per year in medical expenditures and $80 billion a year from lost
productivity.
The
American Lung Association states that a smoking employee costs the employer
at least $1,000 a year more than a non-smoking employee in direct and
indirect health care costs. It is estimated that an employer's health
insurance costs could be reduced by almost 20% if it employed only
non-smokers.
In
times of rising health insurance costs, these savings may be critical.
"Employers
are realizing t he majority of health costs are spent on a small minority
of workers," Bill Whitmer, chief executive
of the Health Enhancement Research Organization, an employer and health
care coalition, told the Los Angeles Times.
There
are also numerous indirect costs to the employer from a smoking employee, including
increased employee absenteeism, decreased productivity on the job, and
increased early retirement due to ill health. Smoking employees are absent
an average of 6.5 more days a year than non-smokers.
Other
studies show that accidents, injury rates and disciplinary problems are
higher among smokers.
Other Employers Have Similar Policies
Weyco is not the only, nor is it the first,
employer to have an off-hour smoking ban. A recent study conducted by the
Society for Human Resources Management found that nearly a third of U.S.
employers had introduced programs to encourage staff to stop smoking; 5
percent preferred not to hire smokers and 1 percent flatly refused to take
on applicants who admitted their habit.
Others
who have taken an aggressive stance against off -duty smoking include:
- Union Pacific
Railroad company announced a no-smoking
policy for employees in 2004, both on and off premises, and questions
job applicants about smoking on applications. Job applicants who smoke
will not be hired. The company said it was forced to make the decision
because of rising health care costs.
- Alaska Airlines
requires job applicants to pass a nicotine test before being hired.
- Alabama Governor
Bob Riley is pushing legislation that would charge state employees and
teachers who smoke an extra $20 per month.
Is It Legal?
Critics
of Weyco and other companies with similar
policies argue that companies are going too far in the effort to cut health
costs or protect the health of workers. Many feel that smokers are being
unfairly singled out and wonder what is next –
policies that prohibit occasional drinking off hours, perhaps, since
alcohol consumption also increases health care costs. Critics are also
concerned about the issue of privacy in the workplace.
Are
smokers who smoke on their own private time protected from discrimination?
The answer to that question depends on where you live. Twenty-nine states
and the District of Columbia
have smokers' rights laws that protect smokers from being fired, or
prohibit discrimination on the basis of the use of "lawful products
outside the workplace."
California is not
one of those twenty-nine states with smokers' rights protections.
Generally, unless the company's actions can be shown to violate a state or
federal law or discriminate against a protected class, smokers may have an
uphill battle challenging such policies.
Few
court decisions have addressed these types of policies. According to the National
Law Journal, a 10th Circuit Court of Appeals case upheld the right of
the Oklahoma City Fire Department to have a no-smoking policy, finding that
the rule had a legitimate business purpose.
The
greater issue may come with the type of random testing found in Weyco's drug testing policy. The policy requires random
testing of all employees - - not just pre-employment screening or
reasonable suspicion testing - - for what is a legal substance,
tobacco. Generally, the law surrounding drug and alcohol testing policies
has developed to not allow random testing of non-safety sensitive positions
and to only allow testing upon reasonable suspicion of use of illegal
drugs. A challenge on the basis of privacy rights may be made to the type
of random testing Weyco has.
What Should Employers Do?
This
is an issue that will likely remain in the national spotlight for a while.
Employers who are considering any type of policy restricting smoking during
private time should consult with labor and employment counsel to discuss
potential legal implications of the desired policy.
|
