Sunday, February 20, 2011

From NINA to NSNA: No Smokers Need Apply

 Smoke-free workplace or job discrimination?

It started with hospitals and medical businesses. As more and more states adopted strict policies about smoking, state courts began to bump up against a vexing question—the legal system is being called upon to adjudicate the legality of refusing to hire smokers.

The issue has split the anti-smoking world into two camps, and shines light on the fundamental question: Is it legal to discriminate against tobacco consumers, usually known as smokers, for the use of a lawful product? Will courts uphold cases where employees have been fired for “smelling of smoke”?

20% of Americans continue to smoke. As the New York Times puts it, a shift from “smoke-free” to “smoker-free” workplaces reflects the general feeling that “softer efforts—like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers—have not been powerful-enough incentives to quit.”

Join Together reports that under new “tobacco-free” hiring policies, “applicants can be turned away for smoking, or if they are caught smoking after hire. Policies differ by company, but some require applicants to take urine tests for nicotine.”

The chief executive of St. Francis Medical center in Cape Girardeau, Missouri, which recently stopped hiring smokers, said that it was “unfair for employees who maintained healthy lifestyles to have to subsidize those who do not. Essentially that’s what happens.”

The American Lung Association, the American Cancer Society, and the World Health Organization (WHO) do not hire smokers. However, the American Legacy Group, an anti-smoking advocacy organization that does hire tobacco users, argues that “smokers are not the enemy.” In the words of Ellen Vargyas, the group’s chief counsel,  “the best thing we can do is help them quit, not condition employment on whether they quit.”

As Dr. Michael Siegel of  the Boston University School of Public Health told the New York Times: “Unemployment is also bad for health.”

The issue has broader implications, as yet imperfectly explored. Will it become legal to discriminate against alcohol and drug users in general? How about junk food? Should a company be forced to saddle itself with the likely health costs associated with a junk food junkie?

And so on. This one bears watching.


Jason Giles, MD said...

Hi Dirk,

Excellent and thought-provoking piece on the subtle shift in tactics to rid the workplace of smoking. Discrimination on the basis of smoking status is nothing new, however.

Health insurance companies have added a premium for adverse risk in smokers for decades. Life insurance premiums are approximately double in smokers as compared to those without cotinine (nicotine metabolite) in their urine or saliva.

We know second-hand smoke is a significant risk for co-workers in the vicinity of the smoker. Clearly the employer has an obligation to provide a work environment free from the tobacco smoke hazard. Does he also have a responsibility to the security of the company by choosing the employees that can best advance the goals of the enterprise?

If smokers cost the company more in health premiums and because of that they are at a competitive disadvantage. Eventually everyone, nonsmokers and all, loses his job then the owner cannot be faulted for trying to stay afloat.

You seem to be concerned with the slippery slope of discrimination against the user of any drug regarding hiring. People are already discriminated against for drug use. Hiring, incident and random drug testing for marijuana (for example) does not require the employee to be "under the influence" just to have the metabolite present in a drug test.

To say that unemployment is bad for health assumes that the putative worker would otherwise perfectly qualify for the job except for the smoking. If this is the case and since nobody is born "nicotine deficient" when would it be the responsibility to quit fall on the individual?

Thanks for a great site with excellent information, by the way. You really have something here.


Dirk Hanson said...

Thanks for your cogent comments. The slippery slope I'm concerned about has to do with discrimination on the basis of any physical/mental defect. No addicts need apply? No overeaters? No worriers? No insomniacs? All high risk from an insurance point of view, even though any of them might make killer employees.

It would be more honest for companies to say they'll hire smokers but will pay them less to make up for the added burden they place on company health resources. I think it's nonsense, trying to hire people on the basis of who is physically healthiest, but maybe that's why I'm not a captain of industry.

Thanks for the kind words about the blog.

Jason Giles MD said...

I'm with you on the big-brother aspect of the information. That is why we don't want to let the insurance companies get ahold of our genetic information.

On the other hand, if we knew that much regarding human behavior and out abilities to predict it based on a few brain scans and blood tests then we might have a pre-emptive model for addiction treatment.

Eventually market forces will correct a foolish move by irrationally discriminating companies. All of us worrying insomniacs will join up with the overeating organize-a-holics and make a giant multinational corporation.

The people have the power.


Cody said...

"St. Francis Medical center in Cape Girardeau, Missouri, which recently stopped hiring smokers, said that it was “unfair for employees who maintained healthy lifestyles to have to subsidize those who do not. Essentially that’s what happens"

What's next, firing obese people for upping insurance premiums because they live an unhealthy lifestyle? Essentially, that's what happens, but does it matter?

Jay Coleman said...

What do you think their agenda is behind this? This can't be as simple as avoiding lawsuits. Cigarette companies pay big bucks to stay under the radar, and now they are in the line of fire of policy. Either someone has deeper pockets, or I'm missing something here.

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