Tuesday, February 15, 2011

New York Times on workplace smoking bans

Last week, the New York Times reported on a growing trend in the medical profession: hospitals and other health care providers that refuse to hire smokers:

More hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living. The policies reflect a frustration that softer efforts—like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers have not been powerful-enough incentives to quit.

The Cleveland Clinic, for example, will not hire any smokers. Its website also offers a good example of a nonsmoking hiring policy [pdf]. It also has banned the sale of any non-diet sodas anywhere on its campus. It has no problem, though, selling McDonalds, doughnuts, and hubcap sized cookies (which are delicious) in its cafeteria, so explain that logic to me.

For her part, the Evil HR Lady believes that these policies make for bad human resources:

Companies should focus on offering incentives for quitting. Smokers should have to pay higher health insurance premiums. But, if they ban people who smoke entirely, they are missing out on some great people, who made a big mistake at 13.

As for me, I’m ambivalent as to whether it is good policy or bad policy to screen out smokers from your hiring pool. I’m against these policies for another reason—they may constitute unlawful disability discrimination. As I wrote more than a year ago:

[T]he “regarded as” prong of the new ADA is sufficiently broad to possibly encompass actions taken against employees pursuant to employer anti-smoking policies.... Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking (cancers, lung diseases, asthma, and other respiratory conditions, for example) are also protected disabilities. Employees will claim that an adverse action taken pursuant to an anti-smoking policy is being taken because the employer regards the employee as disabled. Adverse actions taken against employees because of smoking should now be viewed as high risk, at least until courts begin weighing in on this controversial issue.

So, readers, I turn the floor over to you. A poll in Crains New York is running 54% to 46% against smoker discrimination. Does your workplace have an anti-smoking policy? Are you for them or against them, and why?

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 jth@kjk.com.