2013-08-26 16:26:08 - WASHINGTON, D.C. (August 26, 2013): Many companies, concerned about large increases in health care expenses as Obamacare kicks in, are increasingly focusing on the largest single controllable factor: smoking.
While a large number are planning to take advantage of the 50% surcharge on smoker health insurance under Obamacare – “many employers [are] reporting that [it] has halved smoking rates in the workplace,” both the Wall Street Journal and the British Medical Journal have reported – a growing number of companies are simply refusing to hire smokers, notes public interest law professor John Banzhaf, who cites the Bert Fish Medical Center and Flagler County, both in Florida, as the most recent examples.
Banzhaf says there are several reasons so many companies are utilizing this more drastic remedy.
First, many companies are realizing that even charging smokers 50% more for their health insurance – which can exceed $5,000 a year according
to the AP – probably is not enough to cover all their costs if the employee still continues to smoke.
In the only court case where evidence was presented under oath and subject to cross examination, a judge ruled that a single smoker cost his employer more than $12,000 annually, says Banzhaf, who participated in the legal proceeding which upheld the right of employers to refuse to hire people who smoke.
So even requiring a smoker to pay $5,000 more per year may cover less than half the costs the smoker is imposing on his employer, and indirectly on his fellow nonsmoking workers, argues Banzhaf.
In addition to the need to slash costs – expenses which would otherwise have to be borne by the company's nonsmoking employees in the form of reduced medical care coverage and/or lower salaries – many businesses are also concerned about the adverse image having employees who are smokers can present.
That's why this trend is strongest among health-related companies, says Banzhaf, suggesting that patients may be turned off if they are treated by a doctor, nurse, or other professional reeking of tobacco smoke, or simply see medical employees standing on hospital grounds smoking. The same reaction can occur upon encountering smoker employees at gyms, health spas, counseling centers, insurance companies, and with many other employers.
Third, public support for punishing smokers because of the huge costs they impose on others is growing, making it easier for new companies to follow the lead of employers like Alaska Airlines, the Union Pacific Railroad Company, the Kalamazoo Community College, Weyco, Scotts Miracle Gro and even the World Health Organization which have long since stopped hiring smokers. Indeed, CBS-TV hailed Scotts' policy as a "national model" and a "new reality."
Although some critics claim argue that employers should have no say over what employees do off the job, Banzhaf notes that weight loss centers and many gyms don't hire people who overeat, animal rights groups generally don't employ hunters, and women's rights organizations are unlikely to hire men who frequent strip clubs, even though these off-the-job activities are, like smoking, perfectly legal.
Also, the military and many police departments require employees to exercise in their spare time; pilots must refrain from drinking for 48 hours before flying; reporters often can't accept gifts from those they write about; and full time professors can't teach off-the-job at other universities – so the concept of imposing conditions on employees even when they are away from the job site are widely accepted.
Under our free enterprise system, employers – not the government – set the criteria for hiring, except regarding certain limited "immutable conditions" like race and gender where there’s no rational basis for making a distinction. But an annual saving of $12,000 a year per employee provides a very rational basis upon which to make these decisions, and smoking – unlike race or gender – is an activity which tens of millions have given up – so it's far from an immutable characteristic, like race or gender.
Asked why the principle shouldn’t also apply to obesity, Banzhaf notes that the federal government has classified obesity as a “health status,” one sometimes protected under the Americans With Disabilities Act [ADA], and the American Medical Association [AMA] classifies it as a “disease” – neither of which is true of smoking, which is classified only as a “behavior”
by the government.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
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