A Pack A Day Keeps the Jobs Away… February 11, 2011

NYT recently published this article about employers — particularly health care employers — adopting policies that they don’t hire smokers.

Lawyer: I have no problem with this as comes to healthcare organizations.

Nurse: In general, it seems like if an organization’s mission is to promote health, then it’s reasonable to expect its employees to uphold that to an extent– not smoking at work, on the grounds, etc, but really, isn’t what they do at home their own business if it’s not illegal or damaging to the company? I guess there’s an argument to be made that it is damaging to the company, both in terms of image/mission and in terms of finances, but. . .  shouldn’t there be a line between our work lives and our personal lives somewhere? Where? When we sign on to work for a company, we aren’t signing away all of our lives and our time.

Lawyer: Sure, but isn’t there an argument that you’re not just choosing to smoke sometimes — you become a smoker? Given that it’s addictive, and we’re not really talking about the occasional — or even daily — cigarette, but rather a habit?

Nurse: Generally speaking, we can do things that are bad for us, right? We can eat too much cake, we can drink to excess, we can stay up too late. . . and if it doesn’t bother other people, who cares? So when is somking crossing that line, if it’s not during work hours? It might, but. . . when?

Lawyer: Can you tell if someone is a smoker? Smell of smoke, etc? Maybe there would be an argument for an honor system rule, but not for testing for nicotine at random and firing people for testing positive. I’d be interested to get your take on whether the American Cancer Association could do this. If they can, are hospitals really that different?

Lawyer: Also, this quote just kills me:

“If enough of these companies adopt theses policies and it really becomes difficult for smokers to find jobs, there are going to be consequences,” said Dr. Michael Siegel, a professor at the Boston University School of Public Health, who has written about the trend. “Unemployment is also bad for health.”

Um, so… quit? And then you can be double-healthier. People who are characterizing this as discrimination are missing a major point about discrimination: smoking is a behavior. It’s something you decide to do or not do — not a quality that you have and cannot change, such as race, gender, sexual orientation, national origin, arguably religion — the things we forbid discrimination against.

Nurse: I agree that it is not discrimination based on an innate charactaristic, which is all well and good, but. . . legally, can a company discriminate on anything it wishes outside of a few specific things? Can we refuse to hire people who smell bad (not unrelated. . .)? Or people who are alcoholics? What about people with terrible fashion sense? What about morbidly obese people?

Lawyer:  Here are the rules:

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Non-protected reasons for preferring one person over another? a-ok. It’s not illegal to prefer some people over other for reasons not on this list.

Nurse: If so, then, sure, have at it. If you don’t like it, don’t work there, or else quit smoking, or learn to hide it. At my job, they do random drug testing. So I don’t use drugs, and if I do, I accept that I could get caught and I could be terminated. If I wasn’t willing to accept that, I would work somewhere else.

Lawyer: Slightly different there, because drugs are illegal, right? I mean, they have a colorable claim that they’re firing you for violating drug laws. Or  that it’s totally reasonable to keep you away from the cabinet where you keep the vicodin — that you are uniquely unqualified. And perhaps more importantly, you have no claim that you have a right to do drugs.

This type of project seems to have three motivations:

Economic: (cheaper to run, since employees are healthier and more productive)

Image: health care facilities, at least, are trying to help people be healthy… isn’t unsettling to see people in scrubs outside smoking?

Public Health: Reduce smoking in general

Nurse: I think the economic incentive is crystal clear. In terms of image, that seems reasonable. It also matters in jobs like nursing because let’s be honest, who wants someone who smells like an ashtray leaning over them for 12 hours when they don’t feel good to begin with? I’m not just being rude, I’ve had patients ask me to have a particular tech stay out of their room for just that reason.  In terms of public health. . . I’m all for a lot of public health efforts, I think it’s great that you can’t smoke in bars an all that, but when is an employer being too paternalistic? I would resent it if my boss was allowed to fire me if I got a speeding ticket, wasn’t wearing my seatbelt, got drunk on a saturday, or had unsafe sex. Those are public health issues, too.

Lawyer: I’m curious — what do you think about a church refusing to employ a secretary who is unmarried and cohabitates?