Experts Concerned Employee Smoking Bans Will Lead to Intrusions

The employer movement to ban hiring smokers is just the latest—but not the last—intrusion of companies into the rights of individuals, and it's all perfectly legal, says Lewis Maltby, an expert on the issue.

"There are a lot of people in line to get hammered," says Maltby, who is president and founder of the Princeton, NJ-based National Work Rights Institute and author of Can They Do That? Retaking Our Fundamental Rights in the Workplace.

"This is not about smoking. This is about employers telling you what to do in your own home to cut down on the company's medical bill," he says.

As companies struggle to provide workers with healthcare coverage, there will be increased pressure to find ways to control costs through prevention and lifestyle changes. Maltby says the next target will be obese and overweight applicants and employees.

"The CDC has reported that obesity is rapidly overtaking smoking as the leading cause of preventable death. It is not the least bit speculative to say that employers are going to come after people for diet next," he says.

For the most part, unless those employees or applicants are classified as morbidly obese, and subject to the Americans with Disabilities Act, or some other state or federal antidiscrimination laws, Maltby says there really isn't much they can do about it.

"If you are just 20 or 40 pounds overweight, you have no protections. The HR manager can say ‘You're a fat slob. I don't want to hire you,'" Maltby says. "You go to court and the judge says to the HR manager 'Did you say that?' And he says 'You betcha your honor! That is exactly what I said. I don't like fat slobs and that is why I didn't hire him.' And his lawyer says 'I move the case be dismissed.' And the judge says 'motion granted,' because it's not illegal.

"An employer can refuse to hire you for any reason under the sun unless there is a statute that says a particular basis like age or race is not legally permissible."

Hospitals that have imposed hiring bans on tobacco users say it's less about cost and more about sending a message about healthy behaviors.

"Really we intend to model healthy behavior rather than just accepting the fact that it's a fact of life," says Walt Schwoeble, vice president for Human Resources at Akron (OH) Children's Hospital, which imposed a ban on hiring smokers in November 2008.

Schwoeble says there were also concerns that cigarette residue in smokers' clothing would trigger respiratory ailments for some patients. "I'm proud to be part of an organization that is willing to step forward and do the right thing," he says.

Schwoeble says ACH is sensitive to the notion of infringing upon employees' off-duty rights to engage in legal activities.

"I wouldn't be truthful if I said it never crossed our minds, but to me it is not an issue," he says. "Our intent is to employ the individuals who care the most about their health to begin with and model their behavior to the families and patients that come here. These candidates aren't our employees to begin with. We are just screening the candidates who are coming in the door."

Schwoeble says ACH has no plans to expand applicant or employee screens for "body mass index or diet or anything like that. Wellness is a huge initiative that our CEO [William H. Considine] is 100% behind. It's not to say it would never happen, but there is nothing in the foreseeable future that is in the planning stages to do that," he says.

Attorney Jacqueline B. Jones, a partner at the Syracuse, NY-based MacKenzie Hughes LLP, and a specialist in labor discrimination issues, says 29 states—including New York —have laws in place that protect smokers' off-duty rights. The laws were enacted after lobbying by the tobacco industry, she says.

Without similar state laws in place, Jones says it's likely that employer intrusions into employees' personal habits will grow. "There is a lot of talk in the labor employment arena about protecting folks who are overweight, protecting them against discrimination in the workplace. So, I suspect that we will see legislation to protect folks that are overweight," she says.

"You will definitely see more employers trying to encourage employees to be healthier, but in a way that is lawful," such as providing access to weight loss and smoking cessation programs, Jones says.

Maltby says hobbies could soon come under scrutiny. "If your boss is going to get exercised about your smoking at home, they aren't going to be thrilled about the motorcycle you ride," he says. "We've already seen a few companies say 'no motorcycles, no skydiving, none of that stuff.'"

Maltby says an employee's most-personal lifestyle could come into question.

"The problem is there isn't much in your personal life that doesn't affect medical costs, including your sex life, Sexually transmitted diseases are expensive, particularly HIV," he says. "Will employers go after sex life? There is no logical reason—in principle—why they shouldn't because there is money involved. Will they do it? Maybe not. Will they come after people with diet and exercise? Of course they will. That is why we see 1,000 wellness programs pop up every day."