Smokers

KCHR · March 2005

The owner of the conglomerate of staffing companies that I work for has asked me a couple of questions regarding smokers. First, what laws are in place that deal with smoking while at work. I told him that giving smoke breaks is discretionary as there is nothing in the FLSA or our state law (Missouri) that gives the employees the right to take smoke breaks. He then asked me what laws pertain to not hiring smokers. I told him that since tobacco is not a controlled substance, screening out smokers for internal positions would be discriminatory. Finally, he wanted to know if it would be possible to tell employees that they have 6 months to quit smoking or else they will be dropped from the health insurance coverage (which is provided to internal employees at no cost to them). Your thoughts?

dchr9203 · March 2005

First, check your city ordinance for smoking in public buildings. Second, if you're self-funded, you can carve your plan to have a higher premium for smokers, but I would avoid "disciminating" coverage because they are smokers.

lorrie · March 2005

I think this is an interesting topic, and one that has seen a lot of news coverage lately since a Michigan company decided to quit hiring smokers. There are several stories available online, here's one: [url]http://www.shortnews.com/shownews.cfm?id=45884[/url]

I also found this article interesting: [url]http://www.wpro.who.int/tfi/docs/news/10-10-04_us.htm[/url]

My understanding is that since smokers are not necessarily a protected category, then you can refuse to hire based on that reason.

I don't think that is the same for health insurance, though. I don't think you can deny smokers health insurance, if it is available to everyone else, but I can't actually think of the legal reason why.

I'll be watching for other responses.

SMace · March 2005

You can't drop smokers from your insurance. Smoking is considered a medical condition and your health plan cannot discriminate against people with a medical condition.

You may be able to not hire smokers. It would be very risky, and a potential PR mightmare. I would consult a competent attorney before I went down that road. Some states have laws that basically say you can't discriminate against somone because of a legal behavior. NC is one of these states. I do not know if Missouri has such a law.

Don D · March 2005

Another of my studies reveals that in Missouri, like Kentucky and North Carolina, upwards of 92% of the population either smoke, dip, chew or use moonshine three or more times per week. So, I'm sure there's a law in Missouri. There's one here too.

LarryC · March 2005

Here in Minnesota, it is illegal to discriminate against users of legal products and in Wisconsin they are a protected class. This stems from a successful lawsuit brought by an employee terminated because he drove a Honda Goldwing. He was fired by the owner who drove a Harley.

Balloonman1 · March 2005

The Michigan company fired those who did not quit smoking and offered to help them quit. As for not hiring them, I think you could run into some legal issues if that were the policy. Of course you can usually tell a smoker when they are in close proximity to you, and of course you can always hiring someone "who was a better fit" for the position. I would not even mention the smoking.
My $0.02 worth,
The Balloonman

lorrie · March 2005

I'm confused. What is the difference (legally) between firing someone for something and refusing to hire someone for the same reason?

(I'm not being sarcastic, I just don't get it. It seems that you would invite more problems if you fired someone for something, then turned around and hired someone else with the same issue.)

pork1 · March 2005

BALLOONMAN1: I agree, one can smell a smoker located in a near location, the distance depends on the "heavy ness" of one's nasty stinking habit! Once the company sets up a non-smoking environment as policy, we should never shy away from a direct confrontation of the person who "smells of smoke". It is one of those physical and mental questions that we would broach. "Are there any physical or mental reasons why you would not be able to accomplish the job task?" Just make sure we tell the candidate of the company policy of non-smoking employment.

Pork

Balloonman1 · March 2005

Agree PORK, but if you do not have the non-smoking environment, you need to be smart about trying to do what is best for the company...........

My $0.02 worth,
The Balloonman

HRinFL · March 2005

If you want to drop smokers from your health insurance, why not include drinkers? Like smokers, drinking can lead to serious health conditions that will cost the company a fortune. Those folks cited in The Don's scientific survey would likely develop some sort of liver condition within six months time. That liver would sound like a lead boot hitting the bottom of a metal trash can! Pancreatitis and other debilitating illnesses can also be attributed to drinking as well. Not only should you be smoke free, you should also be a dry facility!

Present that in your argument and see what response you get!

pollypop · March 2005

Since obesity causes many more health problems than smoking, why are we not looking for ways to eliminate overweight people from our workforces?

Gillian3 · March 2005

We shouldn't hire anyone who is sick, has been sick or will be sick in the future. That should take care of everything.

ritaanz · March 2005

Robots! That's the ticket.

deniseE · March 2005

OK...no smokers, drinkers, overweight people (how are we defining that, anyway?), we should also eliminate those that have children...THAT would represent a HUGE savings to the company in health insurance as well as increased performance (less time out of the office).

Do we have any ee's left??? :-?

Balloonman1 · March 2005

yes the lesbians & gays, but we cant hire them because we do not offer benefits for "partners"....

ROFL

System · March 2005

Maryland protects "sexual orientation" but not smokers. I can say "do you smoke?" If the answer is 'yes,' I can say "Next!" There is no protection for smokers, overweight people (except those with morbid obesity who are covered under the ADA), people who drink alcohol, or white males under 40 who wear yellow bow ties.

Federal and State law determine what groups are 'protected' from discrimination. These laws don't rule out the rights of employers. Employers have rights too - like the right to not hire smokers in some states.

Smokers

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