Trying to Curb Worker Smoking? Be Cautious Not to Get Legally Burned

by Susan Lessack

Employers seeking to discourage employees from smoking by instituting bans on their off-the-job activities or imposing higher health care premiums for smokers, should proceed cautiously to ensure their actions comply with the law. Find out what you need to know to avoid becoming the target of lawsuits.

Employers seeking to discourage employees from smoking by instituting bans on their off-the-job activities or imposing higher health care premiums for smokers, should proceed cautiously to ensure their actions comply with the law, according to Pepper Hamilton, a multi-practice law firm with 400 lawyers in Pennsylvania, New Jersey, Delaware, New York, Massachusetts, Michigan, California, and Washington, D.C. (www.pepperlaw.com).

“Employers are becoming increasingly aggressive about eliminating smoking in the workplace and trying to manage its attendant costs, not only by imposing on-the-job bans, but also by adopting policies that address employees’ off-the-job behavior,” said Susan K. Lessack, a partner at Pepper Hamilton.

Related: Charging Smokers More

But, Lessack cautioned, employers should proceed cautiously, lest they find themselves the target of lawsuits.

In all states except Montana, “employment at-will” policies give employers ample latitude to make decisions affecting employees. Despite the broad scope of at-will employment, however, statutory and common law restrictions may limit an employer’s ability to address issues posed by smoking and smokers in the workplace, according to Lessack.



Efforts to control or eliminate employees’ use of tobacco are on the rise nationwide:

  • Weyco Inc., a medical benefits administrator in Okemos, MI, gained national attention when it gave employees an ultimatum to either quit smoking or be fired.
  • Kimball Physics, a manufacturer of scientific instruments in Wilton, NH, has banned all use and possession of tobacco in company buildings and prohibits “tobacco-residuals emitting persons” -- defined as anyone who has used a tobacco product within the previous two hours -- from entering its workplace
  • A growing number of employers are imposing higher premiums for smokers or offering incentives for cessation.

“These employers are motivated by a number of factors, including rising health care costs, pressure to increase productivity, and resentment of smokers by non-smokers arising from perceptions that smokers take more frequent breaks, and increase the health care cost burden on non-smokers,” said Lessack.

“Regardless of the motivation, employers need to consider carefully the potential legal implications of adopting policies targeted at smokers, or making employment decisions based on whether an individual smokes.”

A growing number of cities and states have enacted statutes that explicitly ban smoking in most workplaces. Others are achieving this result by imposing bans on smoking in public places, including places where employees work. In these states, employers have a statutory obligation to ensure a smoke-free workplace for employees.

In the absence of legislation, however, employers may choose to implement a policy that bans smoking on-the-job and on employer premises. Employers must be careful to monitor and enforce the policy uniformly to avoid running afoul of federal and state anti-discrimination statutes that protect individuals from adverse employment actions or working conditions on the basis of protected characteristics, Lessack said. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate against any individual with respect to his…conditions, or privileges of employment…because of such individual’s race, color, religion, sex, or national origin.”

“Courts have long recognized that Title VII applies not only to the more blatant forms of discrimination, but also to the subtler forms, such as discriminatory enforcement of work rules,” said Lessack.

Lessack offered these tips for companies instituting a non-smoking policy:

  • Compliance with a no-smoking-on-the-job policy must be monitored in a consistent manner, ensuring that the policy is not being used to “target” certain employees while affording leniency to others.
  • Employers should investigate all complaints alleging violations of the no-smoking policy with the same degree of effort.
  • The consequences for violating the policy should be delineated clearly and imposed uniformly. Inconsistent monitoring or imposition of discipline for violations could lead to a claim for “disparate treatment,” in violation of federal and state anti-discrimination statutes.

“More difficult questions arise, however, when an employer seeks to implement a policy that adversely affects an employee or applicant who engages in off-duty smoking. Thirty states and the District of Columbia have enacted ‘lifestyle’ anti-discrimination statutes that limit an employer’s ability to make adverse employment decisions about an employee based on his or her activities while off-duty and away from the employer’s premises,” said Lessack.

These lifestyle statutes prevent an employer from terminating an employee or refusing to hire an applicant who smokes tobacco -- a product lawfully sold in the United States. "In addition to state law restrictions imposed by lifestyle statutes, employers also must implement any hiring or retention policy that affects smokers in a consistent manner to avoid a claim of disparate treatment in violation of federal or state anti-discrimination statutes,” added Lessack.

Many employers have imposed higher costs on smokers based on the view that smokers incur higher health care costs, and that requiring smokers to pay a greater portion of those costs than non-smokers is simply a fair distribution of an employer’s expenses. Another approach offers discounts to smokers who participate in smoking cessation or other programs.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) generally prohibits employers from discriminating on the basis of an employee’s health condition in determining benefit premiums or contributions. But, the act recognizes an exception for a “bona fide wellness program.”

“This means that it is not permissible to impose higher payments on smokers unless the employer has a bona fide wellness program and the smoker does not comply with the wellness program’s requirements. Conversely, if an employer offers a smoking cessation program that meets the benefits of a bona fide wellness program and a smoker participates, the employer cannot impose a higher charge on the smoker. Also, if a smoker finds it unreasonably difficult to stop smoking due to addiction, the employer must provide a reasonable alternative standard, such as a discount in return for attending educational classes or trying a nicotine patch,” said Lessack.


An article by Susan Lessack on the risks associated with policies that address smoking on and off the job will be published in the November issue of Employee Relations Law Journal.

 
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