Pros/Cons of Changing State Smoker Protection Laws – 12/21/05

Q: A program manager from a state with an existing smoker protection law has been asked to research the pros and cons of changing its state code, which currently makes it unlawful for employers to refuse to hire smokers or other tobacco users.

• For Program Managers in states with established smoker protection laws (AZ, CA, CO, CT, DC, IL, IN, KY, LA, ME, MN, MS, MO, MT, NV, NH, NJ, NM, NY, NC, ND, OK, OR, RI, SC, SD, TN, VA, WV, WI, WY), please share whether these laws are enforced in any way and whether this issue has been revisited in your state in recent years.
   
• For other Program Managers, please give your state's current legal status on hiring / firing employees based upon a tobacco-related health status factor.

Please also add your thoughts as to the pros and cons of establishing tobacco-related and other wellness employee bias.

A:

1. Alabama: I am not aware of any laws in Alabama that pertain to not hiring or firing people who smoke. Alabama does, however, have a law that allows our state employee insurance boards to charge $20 more per month for those who use tobacco products or have a spouse who use tobacco products. That law passed in the 2005 regular session. Our state Clean Indoor Air law does require several things of businesses who do have a tobacco policy. For more detail, please visit www.adph.org/tobacco and choose the Policy Tracking System. Once there, select state laws and you can access the actual text of the state Clean Indoor Air law.
    
2. Iowa: Response from Attorney General’s Office: I understand that Iowa does not have any specific law guaranteeing the right to smoke to employees. Also I have been advised that smoking is not a protected activity under Iowa or national civil rights law. Therefore I know of no specific provision a smoker could use to protest a hire/fire decision that had some rational basis. The question of what is a "rational basis" is a more detailed legal question than I could answer. I do know that a policy for YESS (Youth Emergency Services and Shelter) was enacted that prohibits all employees from smoking based on the argument, as I understand it, that employees of a youth service organization have a role-modeling responsibility.
    
3. Louisiana: In Louisiana this law is enforced and no cases have come up where a smoker has claimed discrimination based on the fact that they used tobacco. This particular statute is one that has not been revisited in recent years. The current Louisiana smoker protection law states:

   Prohibition of smoking discrimination

   1. As long as an individual, during the course of employment, complies with applicable law and any adopted workplace policy regulating smoking, it shall be unlawful for an employer:
       
      1. To discriminate against the individual with respect to discharge, compensation, promotion, any personnel action or other condition, or privilege of employment because the individual is a smoker or nonsmoker.
      2. To require, as a condition of employment, that the individual abstain from smoking or otherwise using tobacco products outside the course of employment.
          
   2. A smoker, as referred to herein, is limited to a person who smokes tobacco.
       
   3. Nothing in this Section shall preclude an employer from formulating and adopting a policy regulating an employee's workplace use of a tobacco product or from taking any action consistent therewith.
       
   4. Any employer who violates the provisions of this Section shall be fined up to two hundred fifty dollars for the first offense and up to five hundred dollars for any subsequent offense.
      Acts 1991, No. 762, §1.

   The pros of changing smoker protection laws are that over time a healthier workforce is developed which will lead to reduced healthcare costs for both employers and employees. A change in the law will also help to increase the number of cessation attempts and increase the use of cessation services by smokers in order to increase their job seeking potential. The con of changing the law is that smokers will argue that their rights are being infringed upon.

4. New York: (Response from the Center for a Tobacco Free New York, which does not hire smokers because smoking is antithetical to its mission) New York has a smoker protection law that allows employers to discriminate against smokers only when smoking would be directly inconsistent with the performance of their duties - say working for the American Cancer Society or American Heart Association. Also, New York requires insurers to use "community rating" in assessing health insurance premiums, therefore assuring that smokers don't pay any more than nonsmokers in the same market for the same insurance.
    
   I agree with both laws. Being a smoker does not, in itself, make one a less productive employee. Leaving the work station for frequent smoking breaks and increased absence because of smoking-caused illness do, but those are performance measures. An employer has the right to dismiss a less productive employee or pay her less. Smokers should be informed that their behavior is likely to impair their productivity, but discriminating against EVERY smoker because, as a class, smokers are less productive or more costly is simply unfair to healthy, productive smokers (there are some) and clearly the beginning of a slippery slope we don't want to go down. If an employer is concerned about smokers in the workforce, and employers should be, he should adopt policies to help them quit, including assuring that the health insurance benefit covers smoking cessation.
    
   Which leads us to proposals to make smokers pay more for health insurance. As a public health professional, I believe everyone deserves access to health care. Raising the cost reduces access for a smoker and, by the way, his family. Again, it is a slippery slope to reducing access and even denying coverage to anyone with an increased risk of actually utilizing health care. That includes a lot of us.
    
5. Ohio: Ohio does not have a protection law. The most recent example of a business that has threatened to fire smokers is the Scotts Company, whose corporate office is near Columbus in Marysville, Ohio. If their smoking employees don't quit by October they will be fired. The company will provide counseling and NRT to help people quit. One thing I didn't know until I saw an article from the Billings, MT Gazette is that the CEO is a member of the CDC Foundation Board, and interestingly, one of the Scotts Company's board members is the COO of RJR who made no public comment about the new policy. Her term on the board ends next month. Scott didn't say how they would monitor the policy, or at least I haven't seen anything about it.
    
6. Rhode Island: I think laws to protect smokers in the workplace are important issues of freedom of personal choice. To refuse to employ someone because they smoke is, I believe, a violation of civil rights. We do not need to earn the health Nazi designation the industry likes to portray us as. If people smoke on their own, fine. Let's not let them expose others in the workplace, but they are on their own otherwise. If we argue that they incurr more medical costs, we are going down a terrible road to a punitive approach for anyone who smokes, is overweight, doesn't exercise, doesn't get a mammogram, doesn't go to the dentist, etc. These are important protections to keep in place.

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