Now that Obamacare has kicked in, more and more companies are refusing to hire people who smoke. But some legal dangers do remain.
As we pointed out in a post in February 2013, there’s no federal law that protects smokers or entitles them to equal protections when it comes to hiring, promotions, etc. That’s because the Equal Employment Opportunity Commission doesn’t recognize smokers as a protected class.
And Fisher & Phillips attorney Kytle Frye, writing on the Becker’s Hospital Review website, points out that the Patient Protection and Affordable Health Care Act actually recognizes the increased healthcare costs associated with smoking employees by allowing insurers to raise smokers’ insurance premiums up to 50 percent over those paid by non-smokers.
There’s certainly no lack of evidence that smoking adversely affects employee health and productivity. Frye offers a sampling of the grim evidence, gathered by various research groups over the past several years:
- smokers miss an average of about 6.16 days of work per year, as opposed to 3.86 days missed by non-smokers
- a smoker taking four 10-minute smoke breaks per day actually works one month less per year than non-smokers
- for each smoking employee, an employer shoulders an additional $3,391 per year in costs — including $1,760 in lost productivity and $1,623 in excess medical expenses, and
- in a year’s time, smokers make more hospital visits per 1,000 employees (124 vs. 76), have a longer average length of stay (6.5 vs. 5 days) and make six more visits to healthcare facilities than non-smokers.
OK, so those are the reasons why refusing to hire smokers seems like a good idea.
But it’s not a step to take without knowing what you’re getting into.
First, 29 states and the District of Columbia have laws in effect elevating smokers to a protected class. Here’s the list, from the American Lung Association:
And other possible legal snares? Here’s Frye’s analysis, in part:
As with almost any decision affecting employees, implementing premium differentials [for smokers] involves some risk, and the decision to do so should involve due concern for those risks. For one, the Health Insurance Portability and Accountability Act prohibits employees in a group health insurance plan from being charged more for coverage because of a “health factor,” which includes health status, medical condition and claims experience, among other things.
Although lifestyle choices such as smoking are not named as health factors, medical opinion exists identifying nicotine addiction as a medical condition. HIPAA does, however, allow employers some leeway to maintain a premium differential as long as they establish a non-smoking program as part of a wellness program providing a “reward” for participation in the form of a reduced premium for not smoking. …
Another potential legal problem arises from the Americans with Disabilities Act’s prohibition against discriminating in benefits with respect to qualified individuals with disabilities. Although smoking has yet to be identified as, itself, a disability, it often does involve attendant health issues that are disabilities, and there is always a possibility that a court would accept a claim on the theory that a smoker was “regarded as” being disabled. Still, it also is likely that having an acceptable wellness program would provide some insulation from such outcomes.
Proponents for smokers also have argued that, as the less affluent, less educated are much more likely to smoke and to fail to participate in wellness and smoke cessation programs, imposing a premium cost for those choices has a disproportionate adverse impact on such people, which may amount to racial or national origin discrimination.
The idea here is that minorities and certain ethnicities are much more likely to be smokers. A related argument is that smoking is often not so much a matter of choice, but an addiction that began earlier in life.
Finally, a couple of thought-provoking arguments from from the anti-smoking journal Tobacco Control:
- It’s a slippery slope. If the decision were based on health-related costs, couldn’t a case be made for banning people with with weight-related problems, such as high cholesterol or diabetes? And wouldn’t that raise discrimination concerns?
- Would you be turning away good talent because of a smoking addiction — an addiction that could be licked with some help? Sure, when unemployment is high and lots of people are job hunting, you can be choosy. But do you really want to lose that top salesperson or IT manager to a competitor because of smoking?