While the upcoming Great American Smokeout encourages smokers to use November 18th as a day to quit smoking or make a plan to quit, employers can use the occasion as an opportunity to review whether they want to implement tobacco-free policies and the potential legal issues involved in doing so.  In recent years, many employers have introduced programs that encourage quitting smoking as a means to both promote healthier lifestyles and control health care costs.  Other employers, however, have begun to implement strict no-smoking policies that include an outright ban on hiring applicants who are tobacco users.  Towards which end of the spectrum an employer may choose to go depends, in part, on state laws that protect lawful activities – such as smoking – outside of the workplace.

The Massachusetts Hospital Association (MHA) announced this month that, effective January 1st, it will no longer hire tobacco users.  MHA, which works with more than 100 hospitals, went public with its decision in hopes that other businesses and organizations would follow its lead.  In Massachusetts, smoking costs an estimated $6 billion each year, including $4.3 billion in direct health care costs and $1.7 billion in lost productivity related to premature death.  MHA’s decision to stop hiring smokers is possible because there is no state law prohibiting companies from refusing to hire or take adverse employment action against individuals because they smoke or use tobacco or nicotine.  Massachusetts is also hospitable ground, so to speak, for such action given a 2009 federal court decision.  In the Scotts LawnService case, the Massachusetts District Court upheld an employer’s right to withdraw a contingent employment offer to a smoker after the results of a urinalysis revealed the presence of nicotine, even though the individual had already begun employment.  In determining there was no public policy to support the plaintiff’s wrongful termination claim, the Court noted that the public policy regarding smoking is “more aligned with efforts to suppress or discourage smoking than with the protection of the ‘right to smoke.’”

However, just a decade ago, protection of the “right to smoke” was arguably the prevailing trend.  In the 1990s, a number of states passed statutes prohibiting employers from engaging in so-called “lifestyle discrimination.”  These statutes limit an employer’s ability to refuse to hire, discipline, or terminate employees for certain activities or conduct, such as smoking, that is conducted on their own time away from the employer’s premises.  None of these statutes, however, prohibit an employer from banning smoking during work hours on the employer’s premises. Currently, 27 states and the District of Columbia have statutes prohibiting adverse employment actions on the basis of lawful off-duty conduct or use of lawful products.  California’s lawful off-duty activity statute is not included in this count because, to date, it has not been interpreted by the courts to protect smokers.  

Since the passage of these laws, society’s view of tobacco use has undergone a dramatic change.  According to the American Cancer Society, sponsor of the 35th annual Great American Smokeout, a “cultural revolution” has led to an increasing number of public places and work areas that are completely smoke-free.  In addition, quite a few states in the last decade have passed legislation designed to prohibit outright, or more strictly regulate, smoking in workplaces and public venues.  The cultural revolution seems to be a continuum, and MHA – along with a variety of other companies – have now taken the next steps towards effectuating a complete ban on smoking. 

An employer considering implementing no smoking or tobacco- and nicotine-free policies should consult with counsel to (1) learn whether it operates in a state that restricts employment policies based on lawful use of products; (2) determine whether there are any exceptions that may apply to a particular workplace or set of employees; and (3) explore the wide variety of options available to employers in no-smoking initiatives and encouragement of healthier lifestyles.  Here are just a few additional issues employers should consider:

• Group health insurance:  Some state statutes specifically allow for an increase in insurance premiums for smokers provided certain conditions are met.  Notably, some of these states already had the smoker protection statutes in place and amended them so that employers could discriminate in “terms, conditions, and privileges” of employment by charging smokers more for health insurance.  Further, under the HIPAA wellness program regulations, employers are often permitted to provide an incentive, such as charging different rates for smokers and non-smokers, to discourage plan participants from smoking.  The amount of incentive can be substantial and is set to increase under the Patient Protection and Affordable Care Act.
• Bona fide occupational qualification:  Some state statutes expressly provide that employers may restrict smoking off duty and off premises when the restriction relates to a bona fide occupational qualification or is reasonably related to employment activities, or is necessary to avoid the appearance of a conflict of interest with any responsibilities owed by the employee to the employer. While there is virtually no case law on this issue, such statutory language could support arguing for an exception for particular employees (e.g., health care workers, fitness instructors) or particular employers.   
• Timeline for implementation:  Although some people have done it, quitting smoking in one day is not easy.  Employers wanting to implement any sort of smoking restriction should consider an incremental roll-out of a policy rather than abruptly announcing to employees that the workplace is going “cold turkey.” 
• Union issues: Restricting smoking or tobacco use may be a mandatory subject of bargaining depending on a number of factors, including the particular collective bargaining agreement in place.

A recent article in Human Resources Management: Ideas & Trends (pdf) provides additional discussion of the issues related to workplace smoking policies by two Littler attorneys, Gregory C. Keating and Gregory A. Brown.

Mendy Mattingly and Erin Reid-Eriksen co-authored this entry.