Smokers need not apply: Is hiring ban trend of the future?

More private companies are screening out smokers during the hiring process, citing a need to cut health-care costs. It's generally legal, but critics say it's intrusive and unfair.

Melanie Stetson Freeman/Staff
These employees of the Massachusetts Hospital Association (MHA), May Chhav, Patty Crowley, and Joe Kirkpatrick, (l.-r.), do not smoke. Starting in January, the MHA will not hire anyone who smokes.

For about two decades, smokers have been pushed steadily out of the workplace, as lawmakers and employers have sought to minimize exposure to second-hand smoke.

Employers have confined smokers to designated areas, moved smoking areas outside buildings, and limited smoking breaks. Now, some companies are opting to push smokers out of the workplace altogether.

That's the case with the Massachusetts Hospital Association (MHA), an employer of 45 that announced earlier this month it would no longer hire people who smoke. The firm is the first private employer in Massachusetts to take such a step, though several others elsewhere – such as the Cleveland Clinic, a medical center based in Ohio; Alaska Airlines; and Union Pacific Railroad – have also stopped hiring smokers.

Supporters of the hire-no-smokers policy say it will provide smoke-free work environments and help employers control their health-care costs. But critics argue it's a form of discrimination that, moreover, it intrudes into the private lifestyle choices of prospective employees.

The decision to stop hiring smokers as of Jan. 1 fits with MHA's mission as a health advocacy organization, says chief executive Lynn Nicholas. "The MHA ... is a spokesperson for hospitals across the commonwealth, and tobacco use is the leading preventable cause of death in the US. We want to drive the cost of health care down so that is more affordable," she says.

MHA's employees will be expected to report smoking through an honor system, and cessation programs will be offered to existing employees who smoke, says Nicholas, who lost her father and several other relatives to smoking or secondhand smoke. "Smoking is a personal choice, and as an employer I have a personal choice within the law about who we hire and who we don't," says Nicholas.

Excluding smokers from the hiring pool is something John Banzhaf, for one, would like to see more companies do.

"Smoking is the biggest factor in controllable health-care costs," says Mr. Banzhaf, executive director of Action on Smoking and Health (ASH), an antismoking group in Washington, and a law professor at George Washington University. Banning the hiring of smokers "appears to be spreading rapidly through the entire private sector – not just health-related industries – especially as health-care costs continue to soar."

The average smoker costs companies more than $12,000 a year in health- and disability-related costs and takes four 15-minute breaks a day, reports ASH.

Not everyone is ready to fully embrace this policy, though. Some critics ask how much information employers are entitled to know about the lifestyle choices of prospective employees. If they start screening out smokers, who else might they seek to screen out in the future? Overweight people? People who drink?

"Even if this makes sense, how is this materially different from screening for other high-risk and high-cost behaviors?" says Andrew Tarsy, executive director of the Progressive Business Leaders Network in Massachusetts and a former civil rights attorney. He calls the policy "a slippery slope."

"The question is, will this work for most businesses?" he adds. "Most businesses would be inclined to try other methods."

The American Civil Liberties Union characterizes a refusal to hire smokers as "lifestyle discrimination." On its website, the ACLU notes that the Bureau of National Affairs, a private, independent publisher, "reports that 95 percent of companies banning smoking reported no financial savings, and the US Chamber of Commerce has found no connection between smoking and absenteeism."

Employers, moreover, need to tread carefully so as not to run afoul of state laws that protect employee rights, including those of smokers. Less than 20 percent of American adults smoke.

About 30 states have laws that protect smokers, and some won't let employers exclude smokers in the hiring process. Most do not allow firms to fire workers who smoke.

"The laws are enforceable. There are laws that protect smokers," says Stephen Sugarman, a law professor at the University of California, Berkeley. For instance, "I think it's pretty clear that all of these laws prohibit an employer from firing an employee for smoking."

The ban on hiring smokers is a way to gradually eliminate smokers from a workplace. The Cleveland Clinic, which has some 40,000 employees, stopped hiring smokers in 2007. Since then, it has turned over 30 percent of its workforce, and none of those new workers are believed to be smokers.

All new hires are tested for tobacco use, and if they test positive the job offer is rescinded, says Paul Terpeluk, director of corporate and employee health for the Cleveland Clinic. So far, 250 people have lost out on jobs there because of tobacco use. "Over time," he says, "we will achieve a nonsmoking workforce."

At Kalamazoo Valley Community College in Michigan, the decision to stop hiring smokers in 2005 had support from the 1,000 employees, says Sandy Bohnet of the college's human resources department. "We do think that, as a result of this policy, we will see fewer tobacco-related [health-insurance] claims in the future," she says.

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