My posting is tardy but the New York Times article titled “The Smokers’ Surcharge” appeared a day after we discussed the legality of an employer terminating all employees who smoked cigarettes. The Times article focuses on insurance-premium surcharges, not termination, noting that “[m]ore and more employers are demanding that workers who smoke, are overweight or have high cholesterol shoulder a greater share of their health care costs, a shift toward penalizing employees with unhealthy lifestyles rather than rewarding good habits.” The law encourages financial incentives to employee participation in wellness programs but some employers use other methods to modify employee behavior:
Current regulations allow companies to require workers who fail to meet specific standards to pay up to 20 percent of their insurance costs. The federal health care law raises that amount to 30 percent in 2014 and, potentially, to as much as half the cost of a policy.
When Wal-Mart Stores, the nation’s largest employer, recently sought the higher payments from some smokers, its decision was considered unusual, according to benefits experts. The amount, reaching $2,000 more than for nonsmokers, was much higher than surcharges of a few hundred dollars a year imposed by other employers on their smoking workers.
And the only way for Wal-Mart employees to avoid the surcharges was to attest that their doctor said it would be medically inadvisable or impossible to quit smoking. Other employers accept enrollment in tobacco cessation programs as an automatic waiver for surcharges.
“This is another example of where it’s not trying to create healthier options for people,” said Dan Schlademan, director of Making Change at Walmart, a union-backed campaign that is sharply critical of the company’s benefits. “It looks a lot more like cost-shifting.”
For years I’ve posed this scenario to Intro to Law students: can an employer refuse to hire a new employee or terminate a current employee because they smoke cigarettes? Some students believe employers should be able to hire or fire anyone they want for whatever reason they want. The discrimination and wrongful discharge cases they generate will employ generations of lawyers and HR personnel. Most are appalled with the concept of employers having the right to fire someone for engaging in lawful out-of-work activities. A few see the nexus behind smoking and higher health-care costs. Virtually all assume it’s another far-fetched hypothetical, until I relate actual examples of smokers being rejected for employment or fired just because they are smokers. I make the employers’ arguments until they see the cost-benefit logic, and then I ask if employers can fire you because you smoke cigarettes, can they fire you because you engage in high-risk sports? Eat too much junk food? Don’t eat enough spinach? Are obese? Where does it stop? I promise that such lifestyle discrimination will become more prevalent. (Indeed, a colleague teaches an employment-law seminar titled Lifestyle Discrimination.) My goal is to unsettle them. It works.
I make this promise every semester, yet haven’t seen many cases that back me up. And that explains why I was happy to see the recent NYTimes article Hospitals Shift Smoking Bans to Smoker Bans. It begins–
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 new rules essentially treat cigarettes like an illegal narcotic. Applications now explicitly warn of “tobacco-free hiring,” job seekers must submit to urine tests for nicotine and new employees caught smoking face termination. This shift — from smoke-free to smoker-free workplaces — has prompted sharp debate, even among anti-tobacco groups, over whether the policies establish a troubling precedent of employers intruding into private lives to ban a habit that is legal.
The article focuses on health-care employers, where non-smoking rules may have most appeal, but the principles behind a ban on employing smokers readily support bans for other reasons. I can argue persuasively in favor of such bans, yet agree they establish dangerous precedents. First they came for the smokers, and I didn’t speak out because I wasn’t a smoker . . . (with apologies to Martin Niemöller)
Sometimes students think we make it up. Tuesday we talked about employers monitoring off-duty conduct such as smoking. After many students expressed disbelief that an employer could discharge an at-will employee for smoking–“But smoking is legal!”–I related how The Scotts Company did that very thing a few years ago. Welcome to at-will employment. The next day an alert student emailed this article from CNN.com: 39 Whirlpol workers suspended over smoking lies. The workers signed statements for Whirlpool’s insurers that they do not use tobacco “and then were seen smoking or chewing tobacco on company property.” Some may be fired–for lying about smoking, not for smoking. The company employs financial incentives to discourage smoking, charging tobacco users an extra $500 for annual health insurance premiums, practice common for large companies (with more than 20,000 employees), 16 percent of which charge higher insurance premiums to tobacco users.
As reported in the New York Times and elsewhere, the Motion Picture Association of America has revised its movie ratings system to include images of smoking in assigning ratings. A film that glamorizes smoking may get a more restrictive rating, and “descriptions of tobacco use will be added to the increasingly detailed advisories that accompany each rated film.” TU (Warning: Contains graphic images of tobacco use) will go up there with Adult Nudity, Graphic Language, and–soon, I’m sure– FF (Warning: Contains graphic images of fast food consumption).
I’ve been thinking about this all day and still I cannot find the words to convey how inane this is. It’s a great idea if the object is to fetishize images of smoking, to imbue them with the allure of the forbidden. I fail to see any sense in imposing an R-rating for behavior that is, unlike violence and graphic sex, both legal and commonly witnessed in public places. (No, I did not just say that sex is illegal. I said it is not commonly seen in public places.)
Others have picked up the story about Scott Co.’s termination of Scott Rodrigues for smoking. Legal Blog Watch mentions the story here. Jottings by an Employer’s Lawyer has a post about the story and links to Do No Evil and its 200-plus comments on the suit, to Out of the Jungle’s topical links and articles, and to Worker’s Comp Insider, which has followed this issue since 2005.