Tuesday, July 01, 2008

Should Employers Be Allowed To Penalize Employees For Legal Off-Duty Behavior? Companies Firing Workers For Smoking Off The Job

On July 1st, 2008, CNN posted an interesting story about worker's rights. Entitled "Can your company force you to be healthy", four issues were discussed:

- Opponents bristle at lifestyle choices dictated by an employer: Many people object to employers attempting to proscribe legal off-duty conduct and behavior. Particularly objectionable is the practice of forbidding employees to smoke off the job. Some employers, like Alaska Airlines, refuse to hire smokers period. But worse, yet, some employees who fail nicotine tests are arbitrarily fired (thanks to "at-will" employment) even though the tests cannot discriminate between direct exposure through actual tobacco use versus indirect exposure through second-hand smoke from a domestic partner or use of a smoking cessation product like a nicotine patch.

One marquee case cited in the story is the case of Massachusetts resident, Scott Rodrigues, who was fired from Scotts Miracle-Gro Company -- which bans its workers from smoking at all -- after testing positive for nicotine. Rodrigues has sued the multibillion dollar corporation for an invasion of his privacy and civil rights. The case is still being decided in the Massachusetts courts. A spokesperson for Scotts Miracle-Gro said the company does not comment on pending litigation. The Smokers Club website has archived some media stories about the case. Read the actual nine-page complaint HERE in PDF format.

- Medical school threatens to fire workers for smoking on campus: The story cites a May 2008 decision by the University of Massachusetts Medical School to ban smoking on their entire property, including parking lots, and to terminate employees caught smoking anywhere on their property. This is not unique; it is a growing practice in Alaska as well. Alaska Regional Hospital near the corner of DeBarr Road and Airport Heights Drive in Anchorage now bans smoking anywhere on their property, including the parking lots. While an inconvenience to smokers, it is still within the purview of private property rights.

- More firms offer wellness programs including anti-smoking and weight-loss: Many companies offer proactive assistance to employees as an positive incentive to voluntarily adopt healthier lifestyles. Most programs are paid for by the employer as an additional inducement towards participation.

- Critic: Employers shouldn't penalize people for not losing weight. The primary critic cited in the story is Chicago resident Paul McAleer. He runs the BigFatBlog.com website, which focuses on weight-related issues in the media and serves as a forum for its 2,600 members to write about and discuss "fat acceptance." From the "slippery slope" perspective, he says members of his site fear companies may one day treat losing weight like they do quitting smoking, as something workers should be encouraged -- or required -- to do. This could potentially conflict with the provisions of the Americans With Disabilities Act (ADA).

Analysis: Employers are struggling to cope with rising health care costs. To stem the rise, they are promoting preventive wellness programs designed to preclude the onset of medical conditions which can consume such a high percentage of health care dollars. But to be effective, employers use the stick as well as the carrot. The stick not only includes the creation of smoke-free workplaces, but the institution of restrictive hiring practices. Many companies now refuse to hire smokers, will test applicants for nicotine, and will even require that someone have been smoke-free for a certain period of time before being considered for employment.

According to LaborLawyer.com, as of 2007, only 28 states bar employer discrimination against individuals who use tobacco products or who use lawful products outside work: Colorado, Connecticut, District of Columbia, Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota (termination prohibited), Tennessee, (termination prohibited), West Virginia, Wisconsin and Wyoming. In addition, Hawaii's House of Representatives has passed a law asking employers to respect employees' right to use lawful consumables off premises during non-work hours. Note that Alaska is NOT on the list, which is why Alaska Airlines is allowed to discriminate against smokers.

Mandating a smoke-free workplace and even placing a company's entire premises off limits to smoking is not really an issue. It is supported by private property rights. However, denying employment to someone who is otherwise qualified for a job gets a little shaky, considering that employers can use health insurance eligibility as a discriminator here. But firing someone for flunking a nicotine test without determining whether or not the person actually smoked is a gross violation of the principle of due process. The nicotine isn't the problem - the smoke creates the problem.

Consequently, the Alaska State Legislature needs to craft a solution to this problem. Ideally, they should pass a law banning all discrimination against employees who smoke or engage in other lawful behavior off the job. But at the very least, they should ban employers for firing an employee merely for flunking a nicotine test, since the test cannot discriminate between smoking and the use of nicotine substitutes. Yes, such a law "grows government", but this is necessitated by intrusive, irresponsible, and arbitrary corporate behavior. Personal responsibility is the best antidote to the growth of government; the more responsibly people behave, the less need and demand there will be for government intervention.


  1. I disagree entirely. I refuse to hire smokers for the simple reason that THEY SMELL!! HORRIBLY!!! I can't stand their smell, I certainly don't want to work with that smell all day. Why should I have to? Thank god I don't have to. The law should stay just the way it is. If people want to smoke, they can go work for someone who wants them.

  2. Second hand smoking will have adverse effects on both adults and children. Most serious negative effects of second hand smoke in adults are coronary heart disease and lung cancer. On the infants, second hand smoke can cause SIDS (Sudden Infant Death Syndrome). The pregnant women that are exposed to secondhand smoke are at the risk of having low birth weight babies and the babies will have higher risk of developing asthma (among other risks).