I came across an interesting article in The New York Times about hospitals and medical businesses in many states adopting strict policies against hiring smokers — Hospitals Shift Smoking Bans to Smoker Ban. I had just had a discussion with a colleague about this topic so it was already on my mind. The Times article notes that
About 1 in 5 Americans still smoke, and smoking remains the leading cause of preventable deaths. And employees who smoke cost, on average, $3,391 more a year each for health care and lost productivity, according to federal estimates.
The Article goes on to quote a hospital executive from Missouri who stopped hiring smokers last month. This set off an alarm bell for me since I know Missouri is on the list of states with off duty conduct statutes that protect smokers from discrimination. As the Times went on to point out, however, the Missouri statute has an exception for “health care organizations.” Actually, the Missouri statute states that “not-for-profit organizations whose principal business is health care promotion shall be exempt.” Perhaps more importantly, the statute also says that “[t]he provisions of this section shall not be deemed to create a cause of action for injunctive relief, damages or other relief.” Thus, it appears that the Missouri hospital executive did his homework.
If your organization is considering a non-smoking hiring policy or any other aggressive anti-smoking policy, it would be wise to review state laws regarding the subject. Of course, that might not be the end of your troubles. Even if state law is no impediment, this kind of policy strikes me as one that invites litigation, perhaps in the form of a disparate impact claim based on statistical differences in smoking rates in local labor pools. Also, these kind of policies will be used by unions seeking to organize workers who feel that employers should confine their control of employees to the workplace. On a broader policy level, perhaps Mark Twain was right when he responded to the anti-smoking movement of his day: “I haven't a particle of confidence in a man who has no redeeming petty vices whatever.”
Topics/Tags
Select- Labor & Employment Law
- Labor Law
- Employment Law
- Department of Labor
- Department of Justice
- Discrimination
- EEOC
- Workplace Violence
- NLRB
- Non-Compete Agreements
- Department of Homeland Security
- Immigration and Customs Enforcement
- Religion Discrimination
- Title VII
- Foreign Nationals
- Immigration and Nationality Act
- Coronavirus
- Reasonable Accommodation
- Pregnancy Discrimination
- Diversity
- NLRA
- National Labor Relations Board
- Wage & Hour
- Privacy
- Artificial Intelligence
- Inclusion
- LGBTQ+
- FLSA
- Overtime Pay
- Federal Trade Commission
- Employee Benefits and Executive Compensation
- FMLA
- Arbitration
- Workplace Accommodations
- Employment Litigation
- IRS
- Litigation
- Medical Marijuana
- Social Media
- Employer Policies
- Americans with Disabilities Act
- Disability Discrimination
- Retirement
- National Labor Relations Act
- Accommodation
- Sexual Orientation Discrimination
- Race Discrimination
- OSHA
- Employer Handbook
- ERISA
- Medical Cannabis Dispensaries
- ADAAA
- Whistleblower
- Unions
- ACA
- Affordable Car Act
- United States Supreme Court
- Employer Rules
- Sexual Harassment
- Technology
- Federal Arbitration Act
- Transgender Issues
- Disability
- 401(k)
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Benefits
- Paycheck Protection Program
- Class Action Litigation
- Disability Law
- Gender Identity Discrimination
- Posting Requirements
- E-Discovery
- Evidence
- Securities Law
- Family and Medical Leave Act
- Health Savings Account
- Preventive Care Benefits
- Environmental Law
- SECURE Act
- Privacy Laws
- US Department of Labor Employee Benefits Security Administration
- Representative Election Regulations
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Affirmative Action
- Electronically Stored Information
- Equal Opportunity Clause
- Telecommuting
- Compensable Time
- Occupational Safety and Health Administration
- Security Screening
- Supreme Court
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Classification
- Fair Minimum Wage
- Federal Minimum Wage
- Misclassification
- Return to Work
- Seniority Rights
- State Minimum Wage
- Wage Increase
- Confidentiality
- Disability Leave
- Equal Pay
- Genetic Information Discrimination
- Media Policy
- National Origin Discrimination
- Retaliation
- Social Media Content
- Antitrust
- Employment Incentives
- HIRE Act
- Social Security Tax
- Taxation
Recent Posts
- ICE Raids and Audits – What’s an Employer to Do
- New Online Registration Requirements for Foreign Nationals
- Workplace Violence: Are You Taking Required Steps to Protect Your Employees?
- EEOC & DOJ New Guidance on DEI-Related Discrimination: What Does it Mean for Employers?
- EEOC Targets 20 Large Law Firms regarding DEI related Employment Practices
- Ohio Senate Bill 11: Key Provisions and Implications for Employers
- Shifting Burdens: Is McDonnell Douglas Past Its Prime?
- Uncertain Ground: The NLRB, EEOC, and the Fallout of Presidential Firings
- UPDATED: What’s Next for the Department of Labor? The Confirmation of Lori Chávez-DeRemer
- Diversity, Equity, and Inclusion: Where Things Stand in Response to Actions Taken by President Trump