2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310
I. WHY AN EMPLOYER MAY LEGALLY REFUSE TO HIRE SMOKERS
II. ADOPTING AND IMPLEMENTING A POLICY NOT TO HIRE SMOKERS
The right of an employer to limit smoking "on the job" has been established over the last twenty years by the efforts of the nonsmokers' rights movement and is now recognized by the Federal Government in numerous agency policies including that of the General Services Administration (GSA), by the laws of 33 states which limit workplace smoking in government offices, and of 19 states which limit smoking in private workplaces, and by the smoking limitation policies of over 50% of private employers in the United States.
The right of an employer to refuse to hire smokers is now being exercised by numerous employers and increasing numbers of states, local authorities and courts are, with a few exceptions, recognizing that right. The following remarks are intended to be of assistance to employers in deciding whether or not to hire smokers. They are, of course, subject to the provisions of the National Labor Relations Act, and also state laws governing a contract of employment.
I. WHY AN EMPLOYER MAY LEGALLY REFUSE TO HIRE SMOKERS
A. Hiring smokers imposes an unreasonable economic burden upon employers, non-smoking employees and taxpayers
It has frequently been argued that an employer should not be concerned with what an employee does "off the job" and this may be accepted provided that the employee's conduct does not result in loss to the employer and others. Under general legal principles, however, exercise of a right or privilege is limited if it intrudes upon the rights of others.
The national financial costs of smoking-related deaths have been estimated to exceed $65 billion in 1985 dollars (Office of Technology Assessment, U.S. Congress). This figure includes $22 billion in health care costs and $43 billion in lost productivity costs.
Such costs, distributed throughout the economy, affect every employer whose output drops because of smoking related illness, every nonsmoking employee whose health plan and insurance premiums must be adjusted upwards to cover treatment of smokers, and every taxpayer whose social security and other taxes are increased to cover sickness and welfare benefits to disabled smokers. Employment of smokers therefore entails a huge economic loss which represents an entirely reasonable ground to refuse to employ off-the-job smokers.
B. In most jurisdictions, refusal to hire smokers does not constitute unlawful discrimination
Federal and most state laws outlaw discrimination on only five main grounds - race, religion, sex, age and handicap. Apart from these an employer, or anyone else, is free to discriminate on any chosen grounds, including whether a candidate for employment is a smoker or not, with the few qualifications, which are mentioned in section III infra.
It may be observed that four of the five grounds of unlawful discrimination -- race, sex, age and handicap -- all represent conditions outside an employee's control, and might be described as immutable characteristics which he or she could not change even if wished. Discrimination on such grounds would be unjust and illegal. Discrimination on grounds of religion would violate the fundamental constitutional protection for religious freedom.
Such serious, permanent, considerations would not apply to tobacco smoking a course of conduct, like drinking alcohol or playing golf, which a potential employee might relinquish voluntarily or under treatment. In short, the smoker is not being discriminated against. He or she has only to give up smoking off the job in order to be eligible for employment.
C. Some employers may have especially serious reasons not to hire smokers
1. Employment requiring a high level of physical fitness
State and local fire and police departments have been among the first employers to have policies against hiring smokers and such policies are in effect in many parts of the United States from the City of Manteca, California, to the City of Alexandria, and Arlington and Fairfax Counties, Virginia.
It is obvious that firefighters and police officers are required to be in good physical condition, with lungs unimpaired, in order to carry out their lifesaving and dangerous duties.
Additionally, many local authorities have found that the rate of disability retirement among firefighters and policemen who smoked was much higher than the rate for nonsmoking officers, and that paying disability pensions for the smokers constituted a grave drain on local tax resources.
Failure by a firefighter to comply with a smoking policy may be a ground for dismissal. Thus in Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987) a United States Court of Appeals held that the City was justified in firing a trainee firefighter who smoked a cigarette during his lunch break. The Court stated that the City's regulation which prohibited smoking on and off duty had a legitimate state purpose in promoting health. Similar considerations would apply to any employment requiring physical fitness for the performance of duties; and it may, indeed, be argued that good health is an essential asset for any job.
2 Employment involving contact with dangerous substances.
Smokers are much more vulnerable than nonsmokers to the effects of exposure to certain dangerous substances which may be used in manufacturing processes. Thus, for example, a smoker exposed to asbestos fibers has ten times the risk of contracting lung cancer than does a nonsmoker similarly exposed.
It is, therefore, important even for the protection of smokers, that they should not be hired where they will have to face severe hazards to their health, and a number of manufacturers (for example the Manville Corporation (asbestos) and GAF Corporation (plastic tiles)) will not hire smokers to work with these materials. These special cases do not, of course, prevent employers with less stringent reasons from refusing to hire smokers.
II. ADOPTING AND IMPLEMENTING A POLICY NOT TO HIRE SMOKERS
A. Informing and consulting the workforce
As in all personnel matters relating to smoking and health, the need for disseminating information about the smoking problem and good public relations with the workforce cannot be over-emphasized. Many smokers are quite unaware of the economic losses which their habit causes. For example, the Dow Chemical Company, as long ago as 1974, found that in the Company's Midland Division alone cigarette smokers each missed 5.5 days per year more, due to illness than nonsmokers. Total excess wage benefits paid for smokers amounted to $324,990.92, plus excess overtime costs for smokers of $327,155.85 -- a total of $657,146.73 per year. If the smokers are not impressed by loss caused to the employer, it could be pointed out to them how much they could save on health plan and insurance premiums if they could be classified as nonsmokers.
B. Taking account of the requirements of any collective bargaining agreement
If a workplace is unionized, consultation with the workforce may be regulated by the terms of a collective bargaining agreement. Some agreements may apply only to the workplace premises to ensure safe and healthful working conditions and such an agreement might not cover a policy not to hire smokers. An agreement governing "conditions of employment" might however be applicable.
Thus in 1983 the Superior Court of the City of San Mateo (California) presided over the settlement of an action brought by the firefighter's union against the City for introducing a policy not to hire smokers. The City was permitted to introduce its policy provided that it did so in consultation with the union.
C. Making the transition to a smokefree workforce
1. Employees already in post
Most employers utilize some form of "grandfather" clause to retain present employees in post, even though they may smoke off the job, and rely on attrition to eliminate smokers as they die or retire. Smokers should, however, have the benefit of information on the advantages of quitting smoking (both for their health and their finances) and smoking cessation programs should be available to them at the employer's expense. The American Lung Association, American Heart Association, and American Cancer Society can give advice on programs available, and their costs.
Other incentives to induce employees to quit might include a lottery in which all quitters could participate. The Dow Chemical Company awarded two $3,600 boats with motors and 4 fifty dollar bills to quitters and recruiters to smoking cessation programs.
Other companies arrange their insurance to give smokers an incentive to quit. Pullman Co's PTC Aerospace Unit (at Garden Grove, California) asks smokers to admit in writing that they smoke and pay $10 a month for health insurance that nonsmokers don't pay, or forfeit the insurance altogether.
2. New employees
Advertisements for new employees should specify "nonsmoker", and a candidate may be asked at interview to confirm that he or she does not smoke. Enrollment forms for health plans and insurance benefits will usually contain a request for information on smoking or nonsmoking habits and failure to respond truthfully may result in a denial of claims for benefits.
One private employer, Cardinal Industries, Inc., in Glen Burnie, Maryland, displays a sign at its plant announcing "Cardinal Industries Only Hires Nonsmokers". Applicants are give a physical examination which includes a urine test. Any applicants who say that they are former smokers who have quit are warned that they may be fired for lying about that. Other employers who have stopped hiring smokers include Litho Industries, Inc., a printing company in Raleigh, North Carolina, and New Brunswick Scientific Co., a bio-medical equipment maker in Edison, New Jersey. At the latter company, if an employee is found to be smoking away from work a counseling session is scheduled before any further action is taken.
3. Medical tests for smoking
An applicant for an employment health or life insurance plan may refuse to submit to a urine or saliva test, and an insurer may deny insurance for such refusal. Health and other insurers will not usually require a claimant to take a test to confirm nonsmoker status unless there is reason to believe that he or she is a secret smoker. Where there is such suspicion, a saliva or urine test may reveal the presence of nicotine metabolites. High concentrations of such substances may indicate smoking.
Interviewers and employers should, however, be aware that small concentrations of nicotine metabolites (up to amounts present after having smoked three cigarettes) may be found in the saliva or urine of nonsmokers who have been exposed to tobacco smoke for several hours. The fact that nonsmokers involuntarily assimilate from tobacco smoke contaminated air the same chemicals that smokers do by smoking is another potent reason for maintaining a tobacco free working environment.
D. Summary
An employer's policy not to hire smokers can be well-received by the workforce if it is preceded by a program of information and consultation with the workforce and any union, if it is implemented in a way which protects the jobs of smokers already employed, while giving them incentives to quit, and if the terms of the policy are made very clear to new recruits, including the penalties for disregarding them.
A. In General
Although the American Civil Liberties Union has drafted a policy opposing any form of employment discrimination for off the job activities, including smoking, it has not, to date, brought any action challenging an employer who refuses to hire smokers. There has also been some academic argument that an employer's control of off the job smoking could constitute an invasion of privacy, but no case has been brought on such a theory.
An employer doing business in at least two states -- Virginia and New York -- should, however, be aware of developments which, while not affecting a private employer's right to hire only nonsmokers, might indicate some arguments which might be raised by tobacco industry supporters.
B. Virginia legislation affecting state employees
A Virginia statute passed in 1989 (Code of Virginia 1950 §15.1-29.18) (as a result of intense lobbying by the tobacco industry in a state where tobacco is a $2.8 billion a year industry) enacts that no employee of or applicant for employment with the Commonwealth [of Virginia] or any of its political subdivisions shall be required, as a condition of employment, to smoke or use tobacco products on the job, or to abstain from smoking or using tobacco products outside the course of his or her employment.
The effect of the statute is, however, quite limited in the following respects:
1. The statute applies only to state employers, not to private employers who may continue to hire only nonsmokers if they wish to do so;
2. The statute specifically states that it does not apply to firefighters or police officers, even the tobacco industry supporters evidently recognizing that it is in their own interest that rescue personnel should be healthy nonsmokers; and
3. The statute does not prevent prohibition of tobacco use "on the job", and does not therefore forbid introduction of clean indoor air policies in state, or private workplaces.
There is, however, no doubt that tobacco industry supporters will try to introduce similar legislation elsewhere, and a Maryland Bill, to apply to both public and private employers was narrowly defeated in 1989.
C. Smoker's allegation of discrimination on grounds of handicap
In New York, a smoker has commenced proceedings against an employer on the grounds that a policy not to hire smokers discriminated against her as a handicapped person, one of the illegal forms of discrimination. New York has a law which classifies heroin and methadone addicts as handicapped persons, and the smoker alleged that, as a person addicted to nicotine, she was similarly entitled to handicap status, although the law made no mention of tobacco addicts (Amy Lispson vs. Fortunoff Fine Jewelry and Silverware, Inc., New York State: Executive Department, Division of Human Rights Case Nos. 2-E-D-84-99582).
The smoker filed a complaint with the New York Executive Department's Division of Human Rights which found on July 11, 1985, that there was probable cause to believe that the employer engaged "in the unlawful discriminatory practice complained of," and that a hearing would be recommended. Since then, it is understood, private settlement negotiations have been proceeding. The cigarette companies would certainly like to have the matter settled since, in actions brought against them by smokers, they have always alleged that tobacco use was not addictive. Any finding that the smoker was an addict and a handicapped person would be extremely damaging to the industry.
The foregoing paragraphs have indicated that an employer enjoys the right to require a smoke free workforce, and suggested ways in which to promulgate a policy to this effect. The tendency towards preferring a smoke free workforce is, moreover, a growing business practice. Two years ago, according to a survey by the Bureau of National Affairs, only 1% of 623 employers said they refused to hire smokers. By 1988, the Administrative Management Society, in taking a similar poll, found 6% of 283 companies polled wouldn't hire smokers.
A nonsmoker workforce will clearly become the norm of the future.
NOTE: This leaflet is provided as a public service and is intended to convey general information. Any employer who encounters problems by refusing to hire smokers should consult a local labor law attorney for advice on federal and state law.
2013 H Street, NW / Washington,
DC 20006 / (202) 659-4310