Monday, March 29, 2010

Bill seeks to snuff out discrimination against smokers

Take a look at H.B. 470, introduced last week in Ohio’s legislature. It provides: “No employer shall discharge without just cause, refuse to hire, or otherwise discriminate against any person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, on the basis that the person smokes tobacco.” In other words, it would make “smoking” a protected class, akin to race, sex, disability, etc. The law would protect an employer’s right to adopt and enforce rules prohibiting employees from smoking tobacco, or smelling like tobacco smoke, during the work hours.

As is the case with most anti-discrimination laws, this bill provides for the right to file a lawsuit and recover damages for violations. But, here’s where this bill gets really silly. In addition to civil damages, it also provides for escalating fines of $25,000 for the first offense, $50,000 for the second, and $100,000 for each thereafter.

This law would not be an anomaly. In fact, 29 states plus the District of Columbia have laws that elevate smoking to a protected class. The fact that a majority of states protect smokers as a protected class merely begs the question of whether these laws make good policy.

Compensation Today offers three reasons against a blanket ban on the employment of smokers, and a suggested best-practice:

    1. Like any policy that regulates off-duty conduct, it is difficult to enforce. (Do you really want to run around sniffing your employees for telltale signs of smoking, as they walk in the door each morning?)
    2. You may find that the employee smoking policy limits your pool of qualified job applicants, especially among certain age groups, crafts, or professions.
    3. Even nonsmokers sometimes resent these policies, on principle, as unwarranted intrusions into employee private affairs.

A better approach is to design a workplace smoking policy that regulates smoking in a manner that fits your legitimate business needs. Typically, this approach addresses how to deal with employee smoke breaks more effectively, and involves the discipline of those who abuse break time. And, if you cannot make health insurance distinctions, consider including smoking cessation programs in any health and wellness initiatives you sponsor.

While this proposed middle ground seems reasonable, employers should be free to control health care costs by enacting policies against self-inflicted harm, even if it may single out a class of employees. This situation is different than employers that use high medical costs as a proxy for disability discrimination. While smoking may be an addiction, it is one that started by a personal choice. We do not need to legislate against employment decisions based on a legitimate reason (high health care costs) that do not implicate a congenital characteristic.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or