'No smokers' hired: Avoiding lawsuits

Growing numbers of companies are implementing "no hire" policies for smokers, while others are imposing health premium penalties for workers who smoke. Reasons include higher health care costs, decreased productivity, and higher absenteeism — all linked to smoking.

"There is a push to make it more difficult to smoke, because of the implications on costs," notes John E. Sweeney, an employment attorney at Tully Rinckey PLLC in Albany, NY. "The momentum seems to be going in the direction of tightening rules and regulations to disallow smoking."

New York law differs from that of other states because of a specific statute stating that employers can't fire or refuse to hire an individual because of his or her legal use of consumable products, on the condition that it occurs before or after the employee's work shift and off the premises.

While a workplace in New York state can establish smoke-free policies, "an outright ban or discrimination can't occur in any way, shape or form," he says. In fact, an employer can be successfully sued for damages if they discriminate against an employee because he or she is a smoker.

"The law has not uniformly developed regarding no-hire policies for smokers, or banning employees from smoking outside of work," says Christopher W. Olmsted, an employment attorney with Barker, Olmsted & Barnier in San Diego, CA.

For example, in California, terminations on account of an employee exercising any lawful rights are prohibited. While many employers have moved forward with no-hire policies for smokers, this hasn't been either endorsed or prohibited by the courts yet.

"It remains an open question as to whether smoking counts as a lawful right, and how California courts might apply this Labor Code section," he says.

Still uncertainty

Another area of legal uncertainty is whether medical privacy laws apply to information about smoking habits. The courts have not clearly defined whether the disclosure of such information would violate privacy rights.

"Given the uncertainty of the law at this time, the best practice for a conservative occupational health professional is to err on the side of caution," he says. "Refrain from passing on information regarding smoking habits."

Another approach is to implement a policy of "full disclosure." This means that the employer should disclose, and the employee should acknowledge, that any information regarding smoking habits obtained from any source, including occupational health professionals, may affect the ongoing employment relationship or the provision of benefits.

"Furthermore, the occupational health professional should inform the employee that any information obtained regarding smoking habits may be passed on to the employer," he says.

Admittedly, few employees may then disclose their smoking habits to you, but at least those that do choose to do this will know the possible consequences. Thus, he says, "the risk of a legal claim would seem to be substantially diminished."

Smoking is not a protected classification from a discrimination perspective, says Harold M. Goldner, an attorney with Kraut Harris in Blue Bell, PA, and couldn't be brought in under the Americans with Disabilities Act because active addiction is not a protected classification and can't be considered as a disability from a medical perspective.

"I can't imagine myself representing a smoker who says, 'I was fired because I was addicted to nicotine,' and having a jury be sympathetic," he says. "I don't see these cases as having any wheels."

Ethical considerations

The Virginia Beach Fire Department has had a "no tobacco use" policy in place since 1991, with all employees required to sign an agreement that states they will not use tobacco products, on or off duty, as a condition of employment.

"This program is aimed at increasing members' overall health," says Kenneth A. Pravetz, health and safety officer. "It has improved the performance of the organization, reduced injuries, and led to a more fit and better informed workforce."

If occupational health professionals are employees of the company, they're also responsible for implementing company policies. Thus, if the company has a mandatory reporting policy for smoking, you're presumably required to report this information.

However, you also have a responsibility to protect the confidentiality of a worker's health information. Where does this leave you if an employee reports being a smoker when there is a no-smoking policy in the workplace?

"The occupational health professional will have a real dilemma in these types of situations," says Susan Kennerly, RN, PhD, associate professor and deputy director of the occupational health nursing program at the College of Nursing at University of Cincinnati (OH). She gives these recommendations:

• Discuss the process to follow, and the occupational health role, before an incident occurs;

• Keep in mind that by accepting or continuing employment with full awareness of differential premiums for smokers, the employee who smokes without reporting must accept the responsibility for self-reporting;

• If the employee acknowledges a failure to report his or her smoking status, give notice that it will be reported, thus giving him or her the opportunity to self-report within a designated time period.

"The implications of no-hire and no smoker policies are of both a legal and ethical nature," she says. Potential conflicts between fairness to employees, and duty to one's employer, may create both personal and professional stress for occupational health.

While you're bound by professional responsibility to address the health needs of individual employees, you must also ensure that the employee's personal health information is protected according to Health Insurance Portability and Accountability Act (HIPAA) requirements.

"The greatest legal risk to occupational health, in this case, is a potential HIPAA violation," she says. This is why it's important to anticipate the possibility that some employees may acknowledge smoking as part of the health interview, and discuss the expected reporting process in advance with higher-ups.

"Negotiating with supervisors for policy implementation, based on the occupational health professional's encouragement of employee self-reporting, may reduce the risk of being perceived as in violation of company policy," she says.

Sources

For more information on the legal implications of no-smoking policies, contact:

• Christopher W. Olmsted, Barker, Olmsted & Barnier, APLC, San Diego, CA. Phone: (619) 682-4820. Fax: (619) 220-7056. E-mail: cwo@barkerolmsted.com.

• Harold M. Goldner, Kraut Harris, PC, Blue Bell, PA. Phone: (215) 542-4900. Fax: (215) 542-0199. E-mail: hgoldner@krautharris.com.

• John Sweeney, Tully Rinckey, PLLC, Washington, DC. Phone: (202) 787-1900. E-mail: jsweeney@1888law4life.com.

• Susan Kennerly, RN, PhD, Associate Professor, Deputy Director of Occupational Health Nursing Program, College of Nursing, University of Cincinnati. E-mail: kennersm@ucmail.uc.edu.

• Kenneth A. Pravetz, Health and Safety Officer, Virginia Beach Fire Department. Phone: (757) 385-8713. E-mail: kpravetz@vbgov.com