2013-08-24 14:50:31 - WASHINGTON, D.C. (August 24, 2013): Florida’s Bert Fish Medical Center will follow FORBES suggestion – "DON’T HIRE SMOKERS" – joining dozens of other hospitals and insurance companies, as well as governmental bodies (including the W.H.O.) and many other businesses, in a move which could save it $12,000 a year for each smoking employee, according to a court finding. Moreover, it will test all applicants for nicotine, just as applicants are often tested for other drugs, says public interest law professor John Banzhaf.
Although such policies have been in effect for more than thirty years, and have repeatedly been upheld by the courts – even when adopted by governmental bodies, to which the Constitution, as well as general anti-discrimination laws, apply – critics still raise the same stale objections, says Banzhaf, who jump started the trend, and helped to defend such policies from legal attack.
Without such a no-smoker policy, nonsmoking employees are forced to absorb about $2,500 more each year to cover these unnecessary expenses – money which could otherwise be used to provide them with expanded health insurance coverage, higher wages or other benefits, etc. – a situation which Banzhaf says is grossly unfair to the great majority of workers, as
well as to cash-strapped hospitals serving the public.
Also, hospitals are especially concerned about their image and reputation, with patients complaining – and sometimes even voting with their feet – about seeing doctors and nurses standing outside smoking, or reeking of tobacco smoke residue inside, when they come for treatment.
Although some critics claim "discrimination," 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 and train operators must refrain from drinking for 48 hours before flying; and reporters often can't accept gifts from those they write about – so the concept of imposing conditions on employees, even when they are away from the job site, appears to be one of long standing and is 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 is an activity which tens of millions have given up – so it's far from an immutable characteristic like race or gender, explains Banzhaf.
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” not entitled to legal protection.
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)
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