Experts Concerned Employee Smoking Bans Will Lead to Intrusions

John Commins, for HealthLeaders Media , February 2, 2010

The employer movement to ban hiring smokers is just the latest—but not the last—intrusion of companies into the rights of individuals, and it's all perfectly legal, says Lewis Maltby, an expert on the issue.

"There are a lot of people in line to get hammered," says Maltby, who is president and founder of the Princeton, NJ-based National Work Rights Institute and author of Can They Do That? Retaking Our Fundamental Rights in the Workplace.

"This is not about smoking. This is about employers telling you what to do in your own home to cut down on the company's medical bill," he says.

As companies struggle to provide workers with healthcare coverage, there will be increased pressure to find ways to control costs through prevention and lifestyle changes. Maltby says the next target will be obese and overweight applicants and employees.

"The CDC has reported that obesity is rapidly overtaking smoking as the leading cause of preventable death. It is not the least bit speculative to say that employers are going to come after people for diet next," he says.

For the most part, unless those employees or applicants are classified as morbidly obese, and subject to the Americans with Disabilities Act, or some other state or federal antidiscrimination laws, Maltby says there really isn't much they can do about it.

"If you are just 20 or 40 pounds overweight, you have no protections. The HR manager can say ‘You're a fat slob. I don't want to hire you,'" Maltby says. "You go to court and the judge says to the HR manager 'Did you say that?' And he says 'You betcha your honor! That is exactly what I said. I don't like fat slobs and that is why I didn't hire him.' And his lawyer says 'I move the case be dismissed.' And the judge says 'motion granted,' because it's not illegal.

"An employer can refuse to hire you for any reason under the sun unless there is a statute that says a particular basis like age or race is not legally permissible."

Hospitals that have imposed hiring bans on tobacco users say it's less about cost and more about sending a message about healthy behaviors.

"Really we intend to model healthy behavior rather than just accepting the fact that it's a fact of life," says Walt Schwoeble, vice president for Human Resources at Akron (OH) Children's Hospital, which imposed a ban on hiring smokers in November 2008.

Schwoeble says there were also concerns that cigarette residue in smokers' clothing would trigger respiratory ailments for some patients. "I'm proud to be part of an organization that is willing to step forward and do the right thing," he says.

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