2009-12-15 14:38:52 - Companies seeking to save thousands of dollars in health and related costs on each employee by hiring only nonsmokers are often mistakenly deterred by the existence of so-called "smokers' rights" laws in effect in about 30 states, but many of the laws are toothless and easily avoided, notes the AMA and law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH), which has successfully defended the right of employers to have a smoke-free work force.

The AMA's American Medical News has just pointed out that, even if state laws prohibit employers from refusing to hire smokers, no law requires companies to provide any smoking breaks, nor to permit smoking on the company's property, even outdoors, in cars in parking lots, etc. As a practical matter, notes Banzhaf, not permitting smoking breaks, and banning smoking anywhere on company property (even inside cars), will probably deter all but the most determined smokers.
www.ama-assn.org/amednews/2009/12/14/bica1214.htm

Another approach, which has been used successfully for many years in New Hampshire (which has a smokers' rights law) is to simply prohibit anyone from coming onto the property who has any detectable odor of tobacco residue (sometimes called "thirdhand tobacco smoke") about him. Unless a

smoker is willing to bathe, change clothing, and use mouthwash after each cigarette, he probably cannot meet this requirement and need not be employed, despite the law, says Banzhaf.

Also, many of the smokers' rights laws provide only very limited protection, notes the law professor. Some, for example, only prohibit companies from making "no smoking" a condition of employment, and do not prohibit paying smokers less, providing them with fewer benefits, etc. Indeed, some states specifically permit companies to charge smokers more for insurance. Also, some smoker statutes apply only to state employees, leaving private companies free to not hire smokers.

Other statutes apply to and protect only current employees, permitting companies to adopt a "no smokers" policy for future hires, an option which might be especially attractive now with so many very qualified unemployed workers competing for a limited number of positions.

It appears that even the statutes which seem to provide significant protection are rarely if even enforced. One reason for this, speculates Banzhaf, is that the monetary damages authorized by the statutes in many situations are so small that lawyers are unlikely to take on the cases and represent the smokers.

Finally, notes Banzhaf, while a growing number of companies are openly announcing their policy of refusing to employ workers who smoke (even off the job), and some are even backing it up with testing to insure compliance, anecdotal evidence suggests that many companies are simply -- without any written policy -- declining to hire smokers for all or most positions, or at least giving strong preference in hiring to nonsmokers.

Courts have repeatedly held that it is not unconstitutional for governmental employers to refuse to hire smokers, and that there is no legally protected right to smoke, either on or off the job. Indeed, except where limited by smokers' rights statutes, both public and private employers may decline to hire smokers, since conventional civil rights laws prohibiting discrimination based on factors like race or gender do not apply to smokers, nor does the ADA.

One reason is that, unlike prohibiting discrimination based upon characteristics like race, religion, gender, etc., smoking is an activity rather than an immutable characteristic. People cannot change their race or gender, but they can quit smoking, as tens of millions have, notes Banzhaf.

Also, the need to save many thousands of dollars every year in health care, disability, absenteeism, and other costs provides a perfectly rational basis for insisting on a smoke-free work force (like a drug-free workforce), says Banzhaf, a rationale almost always absent in discrimination based upon race or gender.

Banzhaf suggests that any company which hires smokers and does not at least charge them more for health insurance is unfairly forcing the great majority of fellow employees who have wisely chosen not to smoke to bear the enormous costs of their smoking. That's because the money the company is forced to spend on treating the many diseases caused unnecessary by smoking could be used to provide more health benefits for all workers, increases in salary, etc.

PROFESSOR JOHN F. BANZHAF III
Professor of Public Interest Law at GWU,
FAMRI Dr. William Cahan Distinguished Professor,
FELLOW, World Technology Network, and
Executive Director and Chief Counsel
Action on Smoking and Health (ASH)
America's First Antismoking Organization
2013 H Street, NW
Washington, DC 20006, USA
(202) 659-4310 // ash.org/